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OFFICIAL CODE OF GEORGIA 
ANNOTATED 



With Provision for Subsequent Pocket Parts 



Prepared by 

The Code Revision Commission 

The Office of Legislative Counsel 

and 

The Editorial Staff of Michie 




Published Under Authority of the State of Georgia 



Volume 29A 

1997 Edition 

Title 41. Nuisances 
Title 42. Penal Institutions 



Including Acts of the 1997 Session of the General Assembly and 

Notes to the Georgia Reports Through Volume 267, page 438, 

and the Georgia Appeals Reports Through 

Volume 223, page 902 



MICHIE 

Law Publishers 

Charlottesville, Virginia 

1997 



Copyright © 1997 

BY 

State of Georgia 



All rights reserved. 



4192510 



"Michie" and the Open Book and Gavel logo are trademarks of 
Michie, a division of Reed Elsevier Inc. 




OFFICE OF SECRETARY OF STATE 



= 



J% Jfismti sjff. Jfflajjea, Jecretaru of5ftafe oftAe 

statutory portion of the Official Code of Georgia Annotated 
contained in this volume is a true and correct copy of such 
material as enacted by the General Assembly of Georgia; all as 
the same appear of file and record in this office. 





In Testimony Whereof. I have hereunto set ray 
the seal of my office, at the Capitol, in the City of Atlanta, this 

16th day of June • in the y eir °* ouf Lord 

One Thousand- Nine Hundred and Ninety seven 
and of the Independence of the United States of America the 



Two Hundred and 



Twenty first. 



^ JSacaiTAKY of |pK-re. 



Preface 

Volume 29 and this volume cumulate and replace the 1994 edition of 
Volume 29 of the Official Code of Georgia Annotated, as supplemented by 
the 1996 Supplement. The 1994 edition of Volume 29 and its 1996 
Supplement may be recycled or, if so desired, retained for historical 
purposes. 

This volume contains all laws specifically codified in Titles 41 and 42 by 
the General Assembly through the 1997 Session. This volume also contains 
annotations to the following sources: 

Georgia Reports, volume 267, p. 438. 

Georgia Appeals Reports, volume 223, p. 902. 

Southeastern Reporter, Second Series, volume 480, p. 185. 

Federal Reporter, Third Series, volume 104, p. 1348. 

Federal Supplement, volume 950, p. 356. 

Federal Rules Decisions, volume 170, p. 29. 

Bankruptcy Reporter, volume 200, p. 970. 

Supreme Court Reporter, volume 117, p. 854. 

Lawyers' Edition, Second Series, volume 136, p. 695. 

United States Reports, volume 513, p. 1302. 

Opinions of the Attorney General, No. 97-5 and No. U97-9. 

Also included are references to the following sources: 

Emory Law Journal. 

Georgia Law Review. 

Georgia State University Law Review. 

Mercer Law Review. 

Georgia State Bar Journal. 

American Jurisprudence, Second Edition. 

Corpus Juris Secundum. 

Uniform Laws Annotated. 

American Law Reports, First through Fifth Series. 

American Law Reports, Federal Series. 

This volume retains amendment notes and effective date notes for Acts 
passed during the 1995, 1996, and 1997 Sessions of the General Assembly. 
In order to determine the changes which were made or the effective date 
applied to a Code section by an Act passed during the 1982 through 1994 
Sessions of the General Assembly, the user should consult the Georgia Laws. 

Visit Michie's Website at http://www.michie.com for an online bookstore, 
technical support, customer service, and other company information. 

If you have questions or suggestions concerning the Official Code of 
Georgia Annotated, please write or call toll free 1-800-446-3410, fax toll free 



PREFACE 

at 1-800-643-1280, or email us at custserv@michie.com. Direct written 
inquiries to: 

Michie 

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Attn: Official Code of Georgia Annotated 

P.O. Box 7587 

Charlottesville, Virginia 22906-7587 



VI 



User's Guide 

In order to assist both the legal profession and the layperson in obtaining 
the maximum benefit from the Official Code of Georgia Annotated, a 
User's Guide containing comments and information on the many features 
found within the Code has been included in Volume 1 of the Official Code 
of Georgia Annotated. 



vn 



Table of Tides 



Title 1 . General Provisions. 

2. Agriculture. 

3. Alcoholic Beverages. 

4. Animals. 

5. Appeal and Error. 

6. Aviation. 

7. Banking and Finance. 

8. Buildings and Housing. 

9. Civil Practice. 

10. Commerce and Trade. 

1 1 . Commercial Code. 

12. Conservation and Natural Resources. 

13. Contracts. 

14. Corporations, Partnerships, and Associations. 

15. Courts. 

16. Crimes and Offenses. . 

17. Criminal Procedure. 

18. Debtor and Creditor. 

19. Domestic Relations. 

20. Education. 

21. Elections. 

22. Eminent Domain. 

23. Equity. 

24. Evidence. 

25. Fire Protection and Safety. 

26. Food, Drugs, and Cosmetics. 

27. Game and Fish. 

28. General Assembly. 

29. Guardian and Ward. 

ix 



TABLE OF TITLES 

30. Handicapped Persons. 

31. Health. 

32. Highways, Bridges, and Ferries. 

33. Insurance. 

34. Labor and Industrial Relations. 

35. Law Enforcement Officers and Agencies. 

36. Local Government. 

37. Mental Health. 

38. Military, Emergency Management, and Veterans Affairs. 

39. Minors. 

40. Motor Vehicles and Traffic. 

41. Nuisances. 

42. Penal Institutions. 

43. Professions and Businesses. 

44. Property. 

45. Public Officers and Employees. 

♦ 

46. Public Utilities and Public Transportation. 

47. Retirement and Pensions. 

48. Revenue and Taxation. 

49. Social Services. 

50. State Government. 

51. Torts. 

52. Waters of the State, Ports, and Watercraft. 

53 . Wills, Trusts, and Administration of Estates. 

In Addition, This Publication Includes 
Constitution of the United States 
Constitution of the State of Georgia 
Tables of Comparative Sections 
Table of Acts 
Index to Local and Special Laws 



TABLE OF TITLES 

Index to General Laws of Local Application 
Short Title Index 
General Index 



XI 



Table of Contents 



VOLUME 29A 



Title 41 
Nuisances 



CHAPTER PAGE 

1. General Provisions, 41-1-1 through 41-1-8 2 

2. Abatement of Nuisances Generally, 41-2-1 through 41-2-17 32 

3. Places Used for Unlawful Sexual Purposes, 41-3-1 through 

41-3-13 56 

Title 42 
Penal Institutions 

1 . General Provisions, 42-1-1 through 42-1-1 1 68 

2. Board and Department of Corrections, 42-2-1 through 42-2-14 89 

3. Georgia Building Authority (Penal), 42-3-1 through 42-3-32 ... 101 

4. Jails, 42-4-1 through 42-4-105 117 

5. Correctional Institutions of State and Counties, 42-5-1 through 

42-5-101 153 

6. Detainers, 42-6-1 through 42-6-25 217 

7. Treatment of Youthful Offenders, 42-7-1 through 42-7-9 233 

8. Probation, 42-8-1 through 42-8-130 241 

9. Pardons and Paroles, 42-9-1 through 42-9-71 345 

10. Correctional Industries, 42-10-1 through 42-10-5 399 

11. Interstate Corrections Compact, 42-11-1 through 42-11-3 403 

12. Prison Litigation Reform, 42-12-1 through 42-12-9 409 

Index to Titles 40 to 42 415 



xin 



TITLE 41 
NUISANCES 

Chap. 1 . General Provisions, 41-1-1 through 41-1-9. 

2. Abatement of Nuisances Generally, 41-2-1 through 41-2-17. 

3. Places Used for Unlawful Sexual Purposes, 41-3-1 through 

41-3-13. 



41-1-1 



NUISANCES 

CHAPTER 1 



41-1-1 



GENERAL PROVISIONS 



Sec. 
41-1-1. 

41-1-2. 

41-1-3. 
41-1-4. 
41-1-5. 



Sec. 



Nuisance defined generally. 
Classes of nuisances; public and 
private nuisances defined. 
Right of action for public nui- 
sance generally. 

Right of action for private nui- 
sance generally. 
Right of action of alienee of in- 
jured property for continuance 41-1-9. 



41-1-6. 
41-1-7. 
41-1-8. 



of nuisance; necessity for request 
to abate nuisance. 
Erection or continuance of nui- 
sance after notice to abate. 
Treatment of agricultural facili- 
ties and operations as nuisances. 
Treatment of publicly owned cul- 
tural facilities as nuisances. 
Sport shooting ranges. 



41-1-1. Nuisance defined generally. 



A nuisance is anything that causes hurt, inconvenience, or damage to 
another and the fact that the act done may otherwise be lawful shall not 
keep it from being a nuisance. The inconvenience complained of shall not 
be fanciful, or such as would affect only one of fastidious taste, but it shall 
be such as would affect an ordinary, reasonable man. (Orig. Code 1863, 
§ 2942; Code 1868, § 2949; Code 1873, § 3000; Code 1882, § 3000; Civil 
Code 1895, § 3861; Civil Code 1910, § 4457; Code 1933, § 72-101.) 



Cross references. — Causes of action and 
remedies for injuries to real estate, Ch. 9, T. 
51. 

Law reviews. — For article, "Recommen- 
dations Regarding Control of Outdoor Ad- 
vertising Along the Interstate Highway Sys- 
tem in Georgia," see 14 Mercer L. Rev. 308 
(1963). For article discussing Georgia's prac- 
tice of exposing municipalities to tort liabil- 
ity through the use of nuisance law, see 12 
Ga. Sl B.J. 11 (1975). For article discussing 
nuisances as "Hidden Liens," see 14 Ga. St. 
BJ. 32 (1977). 

For note, "Town of Fort Oglethorpe v. 
Phillips: A Clarification of Georgia's Public 
Nuisance Law?", see 5 Ga. St. BJ. 474 
(1969). For note analyzing sovereign immu- 



nity in this state and proposing implementa- 
tion of a waiver scheme and creation of a 
court of claims pursuant to Ga. Const. 1976, 
Art. VI, Sec. V, Para. I, see 27 Emory L.J. 717 
(1978). 

For comment on Collins v. Lanier, 201 Ga. 
527, 40 S.E.2d 424 (1946), see 9 Ga. BJ. 325 
(1947). For comment on Gatewood v. 
Hansford, 75 Ga. App. 567, 44 S.E.2d 126 
(1947), see 10 Ga. BJ. 372 (1948). For 
comment on Bennett v. Bagwell & Stewart, 
214 Ga. 115, 103 S.E.2d 561 (1958), holding 
that as a nuisance is a continuing trespass, a 
court in equity will enjoin it in the county of 
the resident defendant even though he is 
only an agent or employee of the nonresi- 
dent defendant, see 21 Ga. BJ. 564 (1959). 



JUDICIAL DECISIONS 



Analysis 



General Consideration 

Power of Municipality to Create Nuisance 

Classes of Nuisances 

1. In General 

2. Nuisance Per Se 



41-1-1 



GENERAL PROVISIONS 



41-1-1 



3. Nuisance in Fact or Per Accidens 

4. Continuing Nuisance 
Manner of Proof 
Damages 

Illustrative Cases 



General Consideration 

Constitutionality. — The statutory defini- 
tion of a nuisance is not vague and indefinite 
and therefore unconstitutional. Atlanta Pro- 
cessing Co. v. Brown, 227 Ga. 203, 179 S.E.2d 
752 (1971). 

Effect on common-law definition. — This 
section was not intended to change the 
common-law definition of a nuisance. State 
ex rel. Boykin v. Ball Inv. Co., 191 Ga. 382, 12 
S.E.2d574 (1940). 

Effect of Federal Aviation Act of 1958. — 
Federal Aviation Act of 1958, 49 U.S.C. 
§ 1506, does not abridge or alter remedies 
existing at common law or by statute, and 
the provisions of this act are in addition to 
such remedies. Owen v. City of Atlanta, 157 
Ga. App. 354, 277 S.E.2d 338, afTd, 248 Ga. 
299, 282 S.E.2d 906 (1981), cert, denied, 456 
U.S. 972, 102 S. Ct. 2235, 72 L. Ed. 2d 846 
(1982). 

Implied private right of action under fed- 
eral statute. — Where the cause of action is 
one that is traditionally relegated to state 
law, such as a nuisance action which is a 
classic area in which state law controls, un- 
der the United States Supreme Court's 
four-pronged test to be applied in analyzing 
the propriety of allowing a case to be main- 
tained as an implied private right of action 
under a federal statute not specifically creat- 
ing such a right, it is inappropriate to infer a 
cause of action based solely on federal law; 
this is especially true now, since the United 
States Supreme Court has directed the fed- 
eral courts to concentrate on the second 
criterion of the four-pronged test, namely, 
the question of congressional intent to cre- 
ate or deny a right of recovery under the 
federal law. Noe v. Metropolitan Atlanta 
Rapid Transit Auth., 644 F.2d 434 (5th Cir.), 
cert, denied, 454 U.S. 1126, 102 S. Ct. 977, 
71 L. Ed. 2d 114 (1981). 

No presumption of legislative intent to 
authorize nuisance. — It is never to be 
presumed that the Legislature intended to 
authorize a corporation to erect a nuisance 
materially tending to destroy the life or 



health of others. Thrasher v. City of Adanta, 
178 Ga. 514, 173 S.E. 817 (1934). 

This section does not legalize a nuisance. 
Holman v. Athens Empire Laundry Co., 149 
Ga. 345, 100 S.E. 207 (1919); Cox v. 
Dejarnette, 104 Ga. App. 664, 123 S.E.2d 16 
(1961). 

Indictable nuisances under § 41-1-6. — 
This section is not the test of indictable 
nuisances under § 41-1-6. Central of Ga. 
Power Co. v. State, 10 Ga. App. 448, 73 S.E. 
688 (1912). 

Right of plaintiff must have been violated. 

— The act, to constitute a nuisance, must be 
in violation of some right of the plaintiff. 
Sheppard v. Georgia Ry. & Power Co., 31 Ga. 
App. 653, 121 S.E. 868 (1924). 

The expression "may otherwise be lawful" 
shows in this section that the act complained 
of, insofar as it causes "hurt, inconvenience, 
or damage to another" must be unlawful — 
that is a violation of some right of plaintiff — 
to constitute a nuisance. Southern Ry. v. 
Leonard, 58 Ga. App. 574, 199 S.E. 433 
(1938); Lawrence v. City of La Grange, 63 
Ga. App. 587, 11 S.E.2d 696 (1940). 

Condition causing hurt or inconvenience. 

— Notion of "illegality" in Georgia involves 
much more than failure to comply with 
some particular directives which may or may 
not apply to an instrumentality at a given 
time. A condition may be illegal when it is 
objectionable only on grounds of causing 
"hurt or inconvenience," i.e., when it is a 
nuisance. This conclusion is directly autho- 
rized by the statutory definition of nuisance. 
Banks v. City of Brunswick, 529 F. Supp. 695 
(S.D. Ga. 1981), aff 'd, 667 F.2d 97 (11th Cir. 
1982). 

Distinction between negligence and nui- 
sance. — In cause of action brought under 
nuisance exception to municipal immunity, 
as to a jury's questions concerning nuisance 
and the ordinary reasonable man standard 
found in this section, the only real distinc- 
tion between negligence and nuisance 
would seem to be that the latter involves a 
continued or repeating condition. One may, 
of course, dispute whether any negligence 



41-1-1 



NUISANCES 



41-1-1 



General Consideration (Cont'd) 

was involved in design and maintenance of a 
traffic signal. But, there would appear to be 
no room at all to doubt that the light was a 
repeating instrumentality. Thus, if there 
were negligence in design or maintenance, 
that negligence would of necessity give rise 
to a nuisance. Certainly a jury was autho- 
rized to so find, particularly in light of police 
officers' testimony that the light was a known 
hazard. Banks v. City of Brunswick, 529 F. 
Supp. 695 (S.D. Ga. 1981), aff 'd, 667 F.2d 97 
(11th Cir. 1982). 

Conformity to general law is no defense to 
nuisance action. Banks v. City of Brunswick, 
529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 
F.2d97 (11th Cir. 1982). 

Qualification on use of property. — The 
right to use one's property as he pleases 
implies a like right in every other person, 
and is qualified by the doctrine that the use 
in the first instance must be a reasonable 
one. Asphalt Prods. Co. v. Marable, 65 Ga. 
App. 877, 16 S.E.2d 771 (1941); Poultryland, 
Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 
(1946). 

Nuisance is generally applied to that class 
of wrongs that arise from the unreasonable, 
unwarranted or unlawful use of property. 
Downside Risk, Inc. v. Metropolitan Atlanta 
Rapid Transit Auth., 156 Ga. App. 209, 274 
S.E.2d653 (1980). 

When one acting solely from malevolent 
motives does injury to his neighbor, to call 
such conduct the exercise of an absolute 
legal right is a perversion of terms. No 
statute or other rule of law in this state that 
confers upon an individual a right to mali- 
ciously injure another, regardless of what 
method may be employed to inflict such 
injury. On the other hand, everyone is enti- 
tled to the protection of the law against 
invasions of his rights by others. The use of 
one's own property for the sole purpose of 
injuring another is not a right that a good 
citizen would desire nor one that a bad 
citizen should have. Hornsby v. Smith, 191 
Ga. 491, 13S.E.2d20 (1941). 

Fact that defendant's predecessor con- 
demned a part of the plaintiff's land for 
railroad purposes, and used the part so 
condemned did not authorize it or its suc- 
cessor in title to maintain a nuisance to the 
damage of the plaintiff's other near-by prop- 



erty. Goble v. Louisville & N.R.R., 187 Ga. 
243, 200 S.E. 259 (1938). 

Nuisance and trespass distinguished. — A 
nuisance is an indirect tort, while a trespass 
usually is a direct infringement of one's 
property rights. The distinction between 
trespass and nuisance consists in the former 
being a direct infringement of one's right of 
property, while in the latter the infringe- 
ment is the result of an act which is not 
wrongful in itself, but only in the conse- 
quences which may flow from it. In the one 
case the injury is immediate, in the other it is 
consequential, and generally results from 
the commission of an act beyond the limits 
of the property affected. Groover v. 
Hightower, 59 Ga. App. 491, 1 S.E.2d 446 
(1939); Cannon v. City of Macon, 81 Ga. 
App. 310, 58 S.E.2d 563 (1950), later appeal, 
89 Ga. App. 484, 79 S.E.2d 816 (1954). 

Violation of criminal law not necessarily a 
nuisance. — - A violation of criminal law such 
as the pursuit of a business on Sunday will 
not be enjoined on the petition of an indi- 
vidual unless it amounts to a nuisance. War- 
ren Co. v. Dickson, 185 Ga. 481, 195 S.E. 568 
(1938). 

Cited in Center & Treadwell v. Davis, 39 
Ga. 210 (1869); Rounsaville v. Kohlheim, 68 
Ga. 668 (1882); Butler v. Mayor of 
Thomasville, 74 Ga. 570 (1885); Ison v. 
Manley, 76 Ga. 804 (1886); Horton v. Fulton, 
130 Ga. 466, 60 S.E. 1059 (1908); Williams v. 
Southern Ry., 140 Ga. 713, 79 S.E. 850 
(1913); Tate v. Mull, 147 Ga. 195, 93 S.E. 212 
(1917); Sanders v. City of Atlanta, 147 Ga. 
819, 95 S.E. 695 (1918); Pitner v. Shugart 
Bros., 150 Ga. 340, 103 S.E. 791 (1920); 
Morrison v. Slappey, 153 Ga. 724, 113 S.E. 82 
(1922); Town of Rentz v. Roach, 154 Ga. 491, 
115 S.E. 94 (1922); Harris v. Sutton, 168 Ga. 
565, 148 S.E. 403 (1929); Jones v. City of 
Atlanta, 40 Ga. App. 300, 149 S.E. 305 
(1929); Atlantic Ref. Co. v. Farrar, 171 Ga. 
371, 155 S.E. 327 (1930); Thomoson v. 
Sammon, 174 Ga. 751, 164 S.E. 45 (1932); 
Hall v. Moffett, 177 Ga. 300, 170 S.E. 192 
(1933); Wingate v. City of Doerun, 177 Ga. 
373, 170 S.E. 226 (1933); Georgia Power Co. 
v. Moore, 47 Ga. App. 411, 170 S.E. 520 
(1933); Pittard v. Summerour, 181 Ga. 349, 
182 S.E. 20 (1935); Perkerson v. Mayor of 
Greenville, 51 Ga. App. 240, 180 S.E. 22 
(1935); Dickson v. Warren Co., 183 Ga. 746, 
189 S.E. 839 (1937); Warren v. Georgia 
Power Co., 58 Ga. App. 9, 197 S.E. 338 
(1938); Poole v. Arnold, 187 Ga. 734, 2 



41-1-1 



GENERAL PROVISIONS 



41-1-1 



S.E.2d 83 (1939); Simpson v. Blanchard, 73 
Ga. App. 843, 38 S.E.2d 634 (1946); Leonard 
v. State ex rel. Lanier, 204 Ga. 465, 50 S.E.2d 
212 (1948); Lankford v. Dockery, 85 Ga. 
App. 86, 67 S.E.2d 800 (1951);Jordan v. Orr, 
209 Ga. 161, 71 S.E.2d 206 (1952); Seckinger 
v. City of Adanta, 213 Ga. 566, 100 S.E.2d 192 
(1957); Barrow v. Georgia Lightweight Ag- 
gregate Co., 103 Ga. App. 704, 120 S.E.2d 
636 (1961); Southeastern Liquid Fertilizer 
Co. v. Chapman, 103 Ga. App. 773, 120 
S.E.2d 651 (1961); Isley v. Litde, 219 Ga. 23, 
131 S.E.2d 623 (1963); Dumus v. Renfroe, 
220 Ga. 33, 136 S.E.2d 753 (1964); Cronic v. 
State, 222 Ga. 623, 151 S.E.2d 448 (1966); 
Town of Fort Oglethorpe v. Phillips, 224 Ga. 
834, 165 S.E.2d 141 (1968); Whitehead v. 
Hasty, 235 Ga. App. 331, 219 S.E.2d 443 
(1975); City of Atlanta v. Owen, 248 Ga. 299, 
282 S.E.2d 906 (1981); Columbus v. Smith, 
170 Ga. App. 276, 316 S.E.2d 761 (1984); 
Life for God's Stray Animals, Inc. v. New N. 
Rockdale County Homeowners Ass'n, 253 
Ga. 551, 322 S.E.2d 239 (1984). 

Power of Municipality to Create Nuisance 

Municipality under a legal duty to create 
no nuisances. Insofar as the language in a 
requested charge by a defendant reflects 
this, it is redundant. Insofar as it states 
otherwise, it is simply wrong. Banks v. City of 
Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), 
aff'd, 667 F.2d 97 (11th Cir. 1982). 

Creating nuisance under guise of per- 
forming governmental function. — While it 
is true that a municipal corporation is not 
liable for its acts of negligence in discharg- 
ing a governmental function, yet a munici- 
pal corporation cannot, under the guise of 
performing a governmental function, create 
a nuisance dangerous to life or health. 
Mayor of Savannah v. Palmerio, 242 Ga. 419, 
249S.E.2d224 (1978). 

Effect of power to grade streets and estab- 
lish drainage system. — A general grant of 
power to grade streets and to establish in 
connection therewith a system of drainage 
does not carry with it any right on the part of 
the municipality to create and maintain a 
nuisance by causing surface water to be 
discharged upon the premises of a private 
citizen; and he may, when such a thing has 
been done, maintain against the city an 
action to recover the damages sustained in 
consequence thereof. Thrasher v. City of 



Atlanta, 178 Ga. 514, 173 S.E. 817 (1934). 

Effect of power to construct sewer and 
drain system. — Power to construct a system 
of sewers and drains does not authorize the 
municipal corporation to create a nuisance. 
In such a case the city cannot escape liability 
on the ground that it is engaged in the 
performance of a governmental function. 
Cannon v. City of Macon, 81 Ga. App. 310, 
58 S.E.2d 563 (1950), later appeal, 89 Ga. 
App. 484, 79 S.E.2d 816 (1954); City of 
Rome v. Turk, 235 Ga. 223, 219 S.E.2d 97 
(1975). 

County's failure to maintain a culvert. — 
Failure of a county to adequately maintain a 
culvert, resulting in property damage from 
flooding, was a nuisance when the county 
clearly knew of the flooding problems, and 
knew that construction developments up- 
stream, which it had approved, contributed 
to the flooding. Fulton County v. Wheaton, 
252 Ga. 49, 310 S.E.2d 910 (1984), overruled 
on other grounds, DeKalb County v. Orwig, 
261 Ga. 137, 402 S.E.2d 513 (1991). 

Actions against municipality. — An action 
sounding in tort may be brought against a 
municipal corporation for the creation or 
maintenance of a nuisance, without refer- 
ence to any question of negligence, where 
danger to health or life is involved; and an 
action sounding in tort may be brought 
against a municipal corporation for the cre- 
ation or maintenance of a nuisance where 
the defendant is negligent, even though the 
act was authorized to be done. Ingram v. City 
of Acworth, 90 Ga. App. 719, 84 S.E.2d 99 
(1954). 

Petition set out a cause of action for 
damages for the maintenance by the defen- 
dant of a sewage disposal plant in such 
manner as to cause a continuing nuisance 
dangerous to life and health, and was not 
subject to general demurrer on the ground 
that the city was at the time engaged in a 
governmental function. Ingram v. City of 
Acworth, 90 Ga. App. 719, 84 S.E.2d 99 
(1954). 

Where petition showed an improper 
maintenance of a sewerage disposal plant, 
with resulting injury to health and property 
damage, the fact that the alleged improper 
maintenance resulted from negligent acts on 
the part of defendant city did not create a 
misjoinder of actions, but only strengthened 
the action as laid on the theory of a continu- 



41-1-1 



NUISANCES 



41-1-1 



Power of Municipality to Create 
Nuisance (Cont'd) 

ing nuisance. Ingram v. City of Acworth, 90 
Ga. App. 719, 84 S.E.2d 99 (1954). 

Classes of Nuisances 

1. In General 

Classification dependent upon particular 
facts. — Which particular things may, and 
which may not, be condemned as a nui- 
sance, usually stand or fall upon their own 
particular facts. Benton v. Pittard, 197 Ga. 
843,31 S.E.2d6 (1944). 

Classes of nuisances. — There are three 
classes of nuisances: (1) nuisances per se, 
such as the obstruction of a stream; (2) 
nuisances dependent on circumstances, 
such as the conduct of a lawful business in 
certain surroundings. Simpson v. DuPont 
Powder Co., 143 Ga. 465, 85 S.E. 344 (1915); 
and (3) continuing nuisances which are 
complements of the other two, as distin- 
guished from a permanent nuisance. City 
Council v. Lombard, 101 Ga. 724, 28 S.E. 994 
(1897). 

2. Nuisance Per Se 

Definition. — A nuisance at law or a 
nuisance per se is an act, occupation, or 
structure which is a nuisance at all times and 
under any circumstance, regardless of loca- 
tion or surroundings. Asphalt Prods. Co. v. 
Marable, 65 Ga. App. 877, 16 S.E.2d 771 
(1941); Gatewood v. Hansford, 75 Ga. App. 
567, 44S.E.2d 126 (1947). 

Structures lawfully erected. — Nothing 
that is lawful in its erection can be a nuisance 
per se. Poultryland, Inc. v. Anderson, 200 
Ga. 549, 37 S.E.2d 785 (1946). 

Injunction. — Equity will not enjoin, as a 
nuisance per se, an act, occupation, or struc- 
ture which is not a nuisance at all times or 
under all circumstances, regardless of loca- 
tion or surroundings. Asphalt Prods. Co. v. 
Beard, 189 Ga. 610, 7 S.E.2d 172 (1940); 
Benton v. Pittard, 197 Ga. 843, 31 S.E.2d 6 
(1944). 

3. Nuisance in Fact or Per Accidens 

Definition. — Nuisances in fact or per 
accidens are those which become nuisances 
by reason of circumstances and surround- 



ings. Poultryland, Inc. v. Anderson, 200 Ga. 
549, 37 S.E.2d 785 (1946). 

The larger class of nuisances are termed 
nuisances in fact or nuisances per accidens, 
and consists of those acts, occupations, or 
structures which are not nuisances per se but 
may become nuisances by reason of the 
circumstances or the location and surround- 
ings. Asphalt Prods. Co. v. Marable, 65 Ga. 
App. 877, 16 S.E.2d 771 (1941); Poultryland, 
Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 
(1946). 

Lawful enterprises. — The larger class of 
nuisances are termed nuisances in fact or 
nuisances per accidens. Bacon v. Walker, 77 
Ga. 336 (1886); Thrasher v. City of Atlanta, 
178 Ga. 514, 173 S.E. 817 (1934). 

Lawful business cannot be a nuisance per 
se, although, because of surrounding places 
or circumstances, or because of the manner 
in which it is conducted, it may become a 
nuisance. Poultryland, Inc. v. Anderson, 200 
Ga. 549, 37 S.E.2d 785 (1946). 

A business may be a nuisance either by 
reason of its location or by reason of the 
improper or negligent manner in which it is 
conducted. Asphalt Prods. Co. v. Marable, 65 
Ga. App. 877, 16 S.E.2d 771 (1941). 

A lawful business may, by reason of its 
location in a residential area, cause hurt, 
inconvenience and damage to those residing 
in the vicinity and become a nuisance per 
accidens by reason of circumstances and 
surroundings. Camp v. Warrington, 227 Ga. 
674, 182S.E.2d419 (1971). 

That which the law authorizes to be done, 
if done as the law authorizes, cannot be a 
nuisance. City of Adanta v. Due, 42 Ga. App. 
797, 157 S.E. 256 (1931); Asphalt Prods. Co. 
v. Beard, 189 Ga. 610, 7 S.E.2d 172 (1940); 
Mayor of Savannah v. Palmerio, 242 Ga. 419, 
249S.E.2d224 (1978). 

That which the law authorizes to be done, 
if done as the law authorizes, is not a nui- 
sance. If a public project is legislatively sanc- 
tioned it cannot be adjudged a nuisance. 
Downside Risk, Inc. v. Metropolitan Adanta 
Rapid Transit Auth., 156 Ga. App. 209, 274 
S.E.2d653 (1980). 

Improper execution of authorized act. — 
This section in denning a nuisance, and in 
saying that the lawfulness of the act does not 
keep it from being a nuisance, does not 
mean that an act may amount to a nuisance 
where it is authorized by law and then is 
executed in accordance with the judgment 
or conclusion reached by the municipal 



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GENERAL PROVISIONS 



41-1-1 



authorities in the exercise of the govern- 
mental function; but the true interpretation 
of this section is that an act which the law 
authorizes to be done ma}' result in an 
actionable nuisance only where there is neg- 
ligence or error in the execution of the 
plans and specifications adopted or pre- 
scribed by the governing authority. City of 
Atlanta v. Due, 42 Ga. App. 797, 157 S.E. 256 
(1931); Southland Coffee Co. v. City of Ma- 
con, 60 Ga. App. 253, 3 S.E.2d 739 (1939). 

Where the act itself is legal, it only be- 
comes a nuisance when conducted in an 
illegal manner to the hurt, inconvenience, 
or damage of another. Southern Ry. v. 
Leonard, 58 Ga. App. 574, 199 S.E. 433 
(1938); Southland Coffee Co. v. City of Ma- 
con, 60 Ga. App. 253, 3 S.E.2d 739 (1939); 
Lawrence v. City of La Grange, 63 Ga. App. 
587, 11 S.E.2d696 (1940). 

Where if one does an act, of itself lawful, 
which being done in a particular place, 
necessarily tends to the damage of another's 
property, it is a nuisance; for it is incumbent 
on him to find some other place to do that 
act where it will not be injurious or offensive. 
Asphalt Prods. Co. v. Marable, 65 Ga. App. 
877, 16 S.E.2d 771 (1941); Benton v. Pittard, 
197 Ga. 843, 31 S.E.2d 6 (1944); Miller v. 
Coleman, 213 Ga. 125, 97 S.E.2d 313 (1957). 

Importance of location of enterprise. — A 
nuisance may consist merely of the right 
thing in the wrong place, regardless of other 
circumstances. Benton v. Pittard, 197 Ga. 
843,31 S.E.2d6 (1944). 

A thing that is lawful and proper in one 
locality may be a nuisance in another; in 
other words, a nuisance may consist merely 
of the right thing in the wrong place, regard- 
less of other circumstances. Poultryland, Inc. 
v. Anderson, 200 Ga. 549, 37 S.E.2d 785 
(1946). 

Though an act or thing be lawful, if, by 
reason of its location in a particular place it 
damages the property of another it is a 
nuisance. Gatewood v. Hansford, 75 Ga. 
App. 567, 44 S.E.2d 126 (1947). 

Injunction. — Equity will not enjoin, as a 
nuisance per accidens, an act, business, oc- 
cupation, or structure, which, not being a 
nuisance per se, does not become a nuisance 
by reason of the particular circumstances of 
its operation or the location and surround- 
ings, as by some improper manner of oper- 
ation or improper connected acts. Asphalt 



Prods. Co. v. Beard, 189 Ga. 610, 7 S.E.2d 
172 (1940); Asphalt Prods. Co. v. Marable, 65 
Ga. App. 877, 16 S.E.2d 771 (1941); Benton 
v. Pittard, 197 Ga. 843, 31 S.E.2d 6 (1944). 

4. Continuing Nuisance 

Definition. — A continuing nuisance does 
not necessarily mean a constant and unceas- 
ing nuisance, but a nuisance which occurs so 
often, and is so unnecessarily an incident of 
the use of property complained of, that it 
can be fairly said to be continuous, although 
not constant or unceasing. Farley v. Gate City 
Gaslight Co., 105 Ga. 323, 31 S.E. 193 
(1898); Keener v. Addis, 61 Ga. App. 40, 5 
S.E.2d695 (1939). 

Repetitive harm or inconvenience as nui- 
sance. — Concept of nuisance involves rep- 
etition or condition causing hurt, inconve- 
nience or injury. The whole idea of nuisance 
is that of either a continuous or regularly 
repetitious act or condition which causes the 
hurt, inconvenience or injury. A single iso- 
lated occurrence or act, which if regularly 
repeated would constitute a nuisance, is not 
a nuisance, until it is regularly repeated. 
Leake v. City of Atlanta, 146 Ga. App. 57, 245 
S.E.2d 338 (1978), rev'd on other grounds, 
243 Ga. 20, 252 S.E.2d 450 (1979). 

Continuance gives rise to new cause of 
action. — Every continuance of a nuisance 
which is not permanent, and which could 
and should be abated, is a fresh nuisance for 
which a new action will lie. Goble v. Louis- 
ville & N.R.R., 187 Ga. 243, 200 S.E. 259 
(1938). 

Where one creates a nuisance, and per- 
mits it to remain, it is treated as a continuing 
wrong, and as giving rise, over and over 
again, to causes of action. But the principle 
upon which one is charged as a continuing 
wrongdoer is that he has a legal right, and is 
under a legal duty, to terminate the cause of 
the injury. Keener v. Addis, 61 Ga. App. 40, 5 
S.E.2d695 (1939). 

A continuing nuisance gives a new cause 
of action for each day of its continued 
maintenance, and in such a case in order to 
avoid a multiplicity of suits a court of equity 
will entertain jurisdiction to enjoin the nui- 
sance and have it abated. Harbuck v. 
Richland Box Co., 204 Ga. 352, 49 S.E.2d 
883 (1948), later appeal, 207 Ga. 537, 63 
S.E.2d 333 (1951). 

Plaintiff's right to equitable relief was not 



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NUISANCES 



41-1-1 



Classes of Nuisances (Cont'd) 
4. Continuing Nuisance (Cont'd) 

barred by the statute of limitations on 
grounds that the nuisance complained of 
had existed for a period of more than four 
years prior to the institution of litigation, 
since where there is a continuing nuisance, a 
new cause of action arises daily and a court 
of equity takes jurisdiction in such a case to 
avoid a multiplicity of suits. Scott v. Dudley, 
214 Ga. 565, 105 S.E.2d 752 (1958). 

Where the nuisance lay in the continuing 
contamination, not in the leaks which origi- 
nally gave rise to it, damage was not com- 
plete and suit was not barred by the applica- 
ble four-year limitations period. Hoffman v. 
Atlanta Gas Light Co., 206 Ga. App. 727, 426 
S.E.2d387 (1992). 

Original nuisance always precedes con- 
tinuing nuisance. — If there was no original 
nuisance, there could be no continuing nui- 
sance. Southern Ry. v. Leonard, 58 Ga. App. 
574, 199 S.E. 433 (1938); Davis v. Beard, 202 
Ga. App. 784, 415 S.E.2d 522 (1992). 

Duty of wrongdoer to terminate continu- 
ing nuisance. — Where one creates a nui- 
sance, and permits it to remain, it is treated 
as a continuing wrong, and as giving rise, 
over and over again, to causes of action. But 
the principle upon which one is charged as a 
continuing wrongdoer is that he has a legal 
right, and is under a legal duty, to terminate 
the cause of the injury. Keener v. Addis, 61 
Ga. App. 40, 5 S.E.2d 695 (1939). 

Prescription does not run in favor of a 
continuing nuisance. Gabbett v. City of At- 
lanta, 137 Ga. 180, 73 S.E. 372 (1911). 

Equity jurisdiction of continuing nuisance. 

— If a nuisance is a continuing one as 
described in this section, a court of equity 
will take jurisdiction to enjoin such a nui- 
sance. Ford v. Crawford, 240 Ga. 612, 241 
S.E.2d829 (1978). 

When plaintiff entitled to equitable relief. 

— If alleged conduct constitutes a continu- 
ing nuisance under this section, the plaintiff 
is entitled to equitable relief. Poultryland, 
Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 
(1946). 

Accrual right of action. — A nuisance, 
permanent and continuing in its character, 
the destruction or damage being at once 
complete upon the completion of the act by 
which the nuisance is created, gives but one 



right of action, which accrues immediately 
upon the creation of the nuisance, and 
against which the statute of limitations be- 
gins, from that time, to run. City of La 
Fayette v. Hegwood, 52 Ga. App. 168, 182 
S.E. 860 (1935). 

Manner of Proof 

Contents of complaint. — In a nuisance 
action the complainant must show the exist- 
ence of the nuisance complained of, that he 
has suffered injury, and that the injury com- 
plained of was caused by the alleged nui- 
sance. Asphalt Prods. Co. v. Marable, 65 Ga. 
App. 877, 16S.E.2d771 (1941). 

Nuisance per accidens. — See 
Poultrvland, Inc. v. Anderson, 200 Ga. 549, 
37 S.E.2d 785 (1946). 

A petition alleging that, at a place of 
business located on a main thoroughfare, 
outside the corporate limits of any munici- 
pality, beer and wine are being sold, a juke 
box operated, both day and night, making a 
loud noise which disturbs and hinders the 
residents of the neighborhood from sleep, 
that drunk people congregate and come out 
of the place cursing, fighting, and making 
undue noise, and many people of disreputa- 
ble character gather, and that beer is sold 
there on Sunday in violation of law, is suffi- 
cient to charge the existence of an abatable 
public nuisance, and therefore stated a 
cause of action and one which the 
solicitor-general (now district attorney) 
could bring proceedings to abate. Davis v. 
State ex rel. Lanham, 199 Ga. 839, 35 S.E.2d 
458 (1945) (decided, in part, under former 
Code 1933, § 26-6103). 

The information of a district attorney filed 
on the application of a citizen — to the 
effect that the defendant knowingly main- 
tained and used a building for the purposes 
of gaming and had in the building a certain 
paper card, dice and other contents, which 
should also be declared to be a nuisance — 
were sufficient, as against the general and 
special grounds of the defendant's demur- 
rer, to set forth a cause of action, to abate the 
place as a common nuisance. Thornton v. 
Forehand, 211 Ga. 658, 87 S.E.2d 865 
(1955). 

Indirect damage of aesthetic value. — 
Allegations that the appellees' actions taken 
on their own property have indirectly dam- 
aged the aesthetic value of the plaintiff's fail 



8 



41-M 



GENERAL PROVISIONS 



41-1-1 



to state a cause of action under this section. 
Jillson v. Barton, 139 Ga. App. 767, 229 
S.E.2d476 (1975). 

Where the allegations of petition could be 
construed as sufficient to show creation of a 
public nuisance, there being no allegations 
that the abatement of the nuisance in the 
manner authorized by law would not afford 
the petitioners adequate relief, writ of man- 
damus would not lie. State Hwy. Dep't v. 
Reed, 211 Ga. 197, 84 S.E.2d 561 (1954). 

Insufficient allegations. — A petition fell 
short of describing a public nuisance when 
there was no allegation that from the points 
where the sewage was deposited by the de- 
fendant city the streams flowed through the 
lands owned by anyone other than the plain- 
tiff, or that anyone other than he was dam- 
aged thereby. Vickers v. City of Fitzgerald, 
216 Ga. 476, 117 S.E.2d 316 (1960), over- 
ruled on other grounds, City of Chamblee v. 
Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994). 

Allegations of petition seeking to enjoin 
an alleged nuisance in operating asphalt and 
cement-mixing and manufacturing plant as 
to the spilling of concrete and asphalt in a 
public street and its effect on persons walk- 
ing along the street related to a public 
nuisance, and stating no special damage, 
showed no cause of action. Asphalt Prods. 
Co. v. Beard, 189 Ga. 610, 7 S.E.2d 172 
(1940). 

Test for nuisance. — The test of whether 
an act or thing complained of is a nuisance is 
whether it would be offensive to persons of 
ordinary feelings and sensibilities, and not 
those of fastidious taste or temperament. 
Benton v. Pittard, 197 Ga. 843, 31 S.E.2d 6 
(1944). 

In the determination of whether a given 
state of facts discloses a nuisance, the gen- 
eral effect of the condition shown on an 
ordinary person, rather than one of abnor- 
mal sensibilities and feelings, is the proper 
consideration. Dorsett v. Nunis, 191 Ga. 559, 
13S.E.2d371 (1941). 

The determining factor in an alleged nui- 
sance is not its effect upon persons who are 
invalids, afflicted with disease, bodily ills, or 
abnormal physical conditions, or who are of 
nervous temperament, or peculiarly sensi- 
tive to annoyances or disturbances of the 
character complained of. Warren Co. v. 
Dickson, 185 Ga. 481, 195 S.E. 568 (1938). 

Business as nuisance. — To make a busi- 
ness a nuisance it must be such to people of 



ordinary nature or condition; it is not suffi- 
cient if it be simply offensive to delicate and 
sensitive organizations. Ruff v. Phillips, 50 
Ga. 130 (1873). 

Threat of inconvenience. — Mere appre- 
hension of inconveniences arising from a 
filling-station in course of construction, the 
same being for a lawful business use, is not 
sufficient to authorize an injunction. Rich- 
mond Cotton Oil Co. v. Castellaw, 134 Ga. 
472, 67 S.E. 1126 (1910); Standard Oil Co. v. 
Kahn, 165 Ga. 575, 141 S.E. 643 (1928). 

Negligence not required. — Negligence is 
not a necessary ingredient of a cause of 
action growing out of a nuisance. Cannon v. 
City of Macon, 81 Ga. App. 310, 58 S.E.2d 
563 (1950), later appeal, 89 Ga. App. 484, 79 
S.E.2d816 (1954). 

Comfortable enjoyment of premises must 
be sensibly diminished. — In a nuisance 
action the occupants of a dwelling house 
must show that the comfortable enjoyment 
of the premises has been sensibly dimin- 
ished, either by actual, tangible injury to the 
property itself, or by the promotion of such 
physical discomfort as detracts sensibly from 
the ordinary enjoyment of life. Asphalt 
Prods. Co. v. Marable, 65 Ga. App. 877, 16 
S.E.2d 771 (1941); Poultryland, Inc. v. 
Anderson, 200 Ga. 549, 37 S.E.2d 785 
(1946). 

Jury determination of public nuisance. — 
Whether or not the acts of the defendant 
constituted a public nuisance, as contended 
by the plaintiff and denied by the defendant, 
is an issue for the jury to determine. Scott v. 
Reynolds, 70 Ga. App. 545, 29 S.E.2d 88 
(1944). 

While it is no longer required that the 
plaintiff in a nuisance case show, as he had to 
do at common law, a freehold interest in the 
property affected by the nuisance, and while 
he no longer need show damage to the realty 
itself, he must still show that the condition is 
injurious by reason of its relationship to his 
home or property in the neighborhood 
where it is located, or else that it is injurious 
by reason of its constituting an obstruction 
to streets or sidewalks and like places used by 
the public generally for passage, which ob- 
structions were at common law regarded as 
public nuisances because they interfered 
with the public right of passage. Stanley v. 
City of Macon, 95 Ga. App. 108, 97 S.E.2d 
330 (1957). 



41-1-1 



NUISANCES 



41-1-1 



Damages 

Nominal damages. — Where a nuisance is 
shown to exist, the law imports damages for 
an injury to the right, and at least nominal 
damages may be recovered to protect the 
right. Asphalt Prods. Co. v. Marable, 65 Ga. 
App. 877, 16 S.E.2d 771 (1941). 

Damages by public nuisance. — A private 
citizen specially damaged by a public nui- 
sance may proceed in his own name and 
behalf to have the same abated. Savannah, F. 
& W. Ry. v. Gill, 118 Ga. 737, 45 S.E. 623 
(1903). 

Manner of alleging damages. — A general 
allegation of damage is sufficient to entitle a 
recovery of all damages that are the natural 
consequence of the nuisance; but where 
special damages are alleged, the defendant 
should be apprised of the items thereof. 
Exley v. Southern Cotton Oil Co., 151 F. 101 
(S.D. Ga. 1907). 

Recovery of damages. — An 
owner-occupant is entitled to recover dam- 
ages for annoyance and discomfort tempo- 
rarily depriving him of the unrestricted use 
and full enjoyment of his premises, in addi- 
tion to damages for permanent injury to the 
freehold and for pain and suffering as a 
result of the maintenance of a nuisance. 
Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 
285, 76 S.E.2d 647 (1953). 

If permanent injury is sustained as the 
result of the maintenance of a nuisance, 
then the owner of the property damaged is 
entitled to compensation for such perma- 
nent injury, whether the nuisance is abated 
or abatable. Shepherd Constr. Co. v. Vaughn, 
88 Ga. App. 285, 76 S.E.2d 647 (1953). 

Damages for depreciation in the market 
value of property are appropriate in a suit 
against a municipality for the taking or dam- 
aging of property for public use and also in 
a suit for a permanent and continuing nui- 
sance created by the municipality, recovery 
of such damages must be had within four 
years from the date of the original injury. 
City of La Fayette v. Hegwood, 52 Ga. App. 
168, 182 S.E. 860 (1935). 

In the case of a private abatable nuisance, 
such as the operation of an asphalt mixing 
plant, the plaintiff is entitled to recover for 
any direct damage to his person or to his 
property resulting from the nuisance, accru- 
ing within the statute of limitations and up 
to the filing of the petition. Shepherd 



Constr. Co. v. Vaughn, 88 Ga. App. 285, 76 
S.E.2d647 (1953). 

The owner of a dwelling house which he 
himself occupies as a home is entitled to just 
compensation for the annoyance and dis- 
comfort occasioned by the maintenance, by 
another, of a nuisance on adjacent premises. 
Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 
285, 76S.E.2d647 (1953). 

For damages for permanent injury to 
property for an unabatable nuisance, there 
can be but one recovery. "A nuisance, per- 
manent and continuing in its character, the 
destruction or damage being at once com- 
plete upon completion of the act by which 
the nuisance is created, gives but one right 
of action, which accrues immediately upon 
the creation of the nuisance . . . Where the 
original nuisance to land is of a permanent 
character so that the damages inflicted 
thereby are permanent, a recovery not only 
may, but must, be had for the entire dam- 
ages in one action; and such damages accrue 
from the time the nuisance is created, and 
from that time the statute of limitations 
begins to run." Price v. Georgia Indus. Re- 
alty Co., 132 Ga. App. 107, 207 S.E.2d 556 
(1974). 

There can be no recovery for damage 
flowing merely from an improper or defec- 
tive or negligent construction or mainte- 
nance of a public improvement which results 
in an abatable continuing nuisance on the 
theory that plaintiff's property has been 
appropriated by its erection and mainte- 
nance. Rhinesv. Commissioners of Chatham 
County, 50 Ga. App. 844, 179 S.E. 140 
(1935). 

In cases of nuisances which cause perma- 
nent injury to land, the ordinary rule is that 
the measure of damages is the depreciation 
in the market value; in regard to nuisances 
which are of a nonpermanent, abatable, or 
temporary nature, the depreciation in the 
usable or rental value ordinarily furnishes 
the measure. But, under some circum- 
stances, there may also be a recovery for 
special damages. Ward v. Southern Brighton 
Mills, 45 Ga. App. 262, 164 S.E. 214 (1932). 

Apportionment of damages. — A court of 
equity, acquiring jurisdiction for the purpose 
of abating a nuisance, will also, upon proper 
averments, extend such jurisdiction to the 
ascertainment and determination of the 
damages suffered by reason of the nuisance, 



10 



41-1-1 



GENERAL PROVISIONS 



41-1-1 



and in such event a court of equity may 
severally apportion damages among the de- 
fendants for their proportionate contribu- 
tion to the injury. Vaughn v. Burnette, 211 
Ga. 206, 84 S.E.2d 568 (1954). 

Illustrative Cases 

Airplanes. — Where the evidence showed 
that at least 75 flights were made over the 
plaintiff's school building daily at altitudes 
of from 50 to 75 feet, just over the top of her 
trees, that the danger necessarily created 
thereby to the life and safety of those occu- 
pying her premises, the noise and vibration 
caused thereby, and the distracting effect on 
her students made further operation of her 
school impracticable, and that by such 
flights the right to enjoy freely the use of her 
property has been substantially lessened, a 
continuing nuisance was established which 
equity would enjoin. Scott v. Dudley, 214 Ga. 
565, 105 S.E.2d 752 (1958). 

Air pollution. — The pollution of the air, 
actually necessary to the reasonable enjoy- 
ment of life and indispensable to the 
progress of society, is not actionable; but the 
right must not be exercised in an unreason- 
able manner so as to inflict injury upon 
another unnecessarily. Poultryland, Inc. v. 
Anderson, 200 Ga. 549, 37 S.E.2d 785 
(1946). 

Asphalt mixing plant. — While the opera- 
tion of an asphalt mixing plant is not a 
nuisance per se, it may become a nuisance in 
fact or a nuisance per accidens by reason of 
the circumstances or the location and sur- 
roundings. Sam Finley, Inc. v. Russell, 75 Ga. 
App. 112, 42 S.E.2d 452 (1947). 

Asphalt-manufacturing and cement- 
mixing plant. — The operation of an 
asphalt-manufacturing and cement-mixing 
plant is not a nuisance per se. Nor does it 
become a nuisance per accidens, if it is 
conducted in a manufacturing section of a 
city, merely because it is operated by coal or 
some fuel discharging obnoxious smoke and 
cinders, or releases dust, or is accompanied 
by loud rattling noises during the day and 
night, and is within 200 feet of a residence, 
where it is not shown that such operation is 
in a residence neighborhood, or that the 
manner of operation is unusual in a business 
of this character, or unnecessary and avoid- 
able. Asphalt Prods. Co. v. Marable, 65 Ga. 
App. 877, 16 S.E.2d 771 (1941). 



Recreational use of baseball park. — The 

playing of ordinary games of baseball, or the 
operation of a park for such games, in a 
lawful, decent, and orderly manner, and 
accompanied only by the usual cheers and 
noise of spectators, where these contests are 
harmlessly played and enjoyed, is not a 
nuisance per se. Such games or pursuits, may 
however, become a nuisance per accidens, 
where there is indecent, disorderly, or im- 
proper conduct of the players or spectators; 
or where, in a residential community, there 
is accompanying noise, which is excessive 
and unreasonable, or which recurs at un- 
usual and unreasonable hours of the night, 
so as to prevent the sleep of ordinary, nor- 
mal, reasonable persons of the neighbor- 
hood. Warren Co. v. Dickson, 185 Ga. 481, 
195 S.E. 568 (1938). 

Billboards. — A billboard erected by de- 
fendants on their own land, which is not 
otherwise a nuisance, does not become one 
merely because it is erected maliciously or 
from spite or ill will, where it serves a useful 
purpose. Campbell v. Hammock, 212 Ga. 90, 
90S.E.2d415 (1955). 

Slaughterhouses and similar enterprises. 
— Certain businesses or structures, such as 
slaughterhouses and certain foul-smelling 
factories, are so offensive to the senses that 
they must be removed from the limits of 
cities and towns, and even from the neigh- 
borhood of family residences. Poultryland, 
Inc. v. Anderson, 200 Ga. 549, 37 S.E.2d 785 
(1946). 

Business solicitation of private home. — 
To arbitrarily declare, without qualification, 
that every solicitor who goes to a private 
home to try to conduct an otherwise per- 
fectly legal business is a nuisance and subject 
to fine or imprisonment is an unreasonable 
interference with his normal legal rights, 
and is without due process of law. De Berry v. 
City of La Grange, 62 Ga. App. 74, 8 S.E.2d 
146 (1940). 

Church in residential section. — A church 
though erected in a residential section is not 
per se a nuisance. Dorsett v. Nunis, 191 Ga. 
559, 13S.E.2d 371 (1941). 

Creating and spreading dust. — The cre- 
ation and spreading of dust in such large 
and unusual quantities as unreasonably to 
contaminate the atmosphere and endanger 
the health and lives of the citizens is not 
within the actual or implied authority of an 



11 



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NUISANCES 



41-1-1 



Illustrative Cases (Cont'd) 

airport franchise, and those responsible 
therefor, despite any immunity or limited 
liability, may be held to full accountability 
for the maintenance of a nuisance. Thrasher 
v. City of Atlanta, 178 Ga. 514, 173 S.E. 817 
(1934). 

The spread of dust upon the property of 
another in excessive and unreasonable 
quantities may amount to a physical invasion 
of his property rights. Thrasher v. City of 
Atlanta, 178 Ga. 514, 173 S.E. 817 (1934). 

Dust is a physical substance, or an aggre- 
gation of substances, gathered from the 
earth. It may contain impurities and result 
directly in disease or physical injury; one 
cannot be forced to endure it from the 
negligence of another even though the busi- 
ness from which it springs may be expressly 
authorized by law. Thrasher v. City of At- 
lanta, 178 Ga. 514, 173 S.E. 817 (1934). 

Fair occupying street. — Ferris wheels and 
other devices for amusement, which fair a 
company of the state militia is permitted to 
station on the street for a week, is a public 
nuisance and a court of equity has jurisdic- 
tion, at the instance of the solicitor-general 
(now district attorney), to restrain it by 
injunction. City Council v. Reynolds, 122 Ga. 
754, 50 S.E. 998, 106 Am. St. R. 147, 69 
L.R.A. 564 (1905). 

Filling station. — A filling-station is not 
per se a nuisance. Standard Oil Co. v. Kahn, 
165 Ga. 575, 141 S.E. 643 (1928). 

Injuries and inconveniences to persons 
residing near filling station, such as noises, 
etc., which result ordinarily and from neces- 
sity in the conduct of their business of 
repairing cars, trucks, and tires, are not to be 
classed as nuisances. Wilson v. Evans Hotel 
Co., 188 Ga. 498, 4 S.E.2d 155 (1939). 

Gaming house. — The maintenance of a 
gaming house or a gaming place is a public 
nuisance. Thornton v. Forehand, 211 Ga. 
658, 87 S.E.2d 865 (1955). 

Veterinary hospital. — The operation of a 
dog and cat hospital is a lawful enterprise 
and is not a nuisance per se, and cannot be 
enjoined unless it becomes a nuisance by 
reason of the particular circumstances of its 
improper operation or improper connected 
acts. Powell v. Garmany, 208 Ga. 550, 67 
S.E.2d781 (1951). 

Injury to health. — All injury to health is 
special, and necessarily limited in its effect to 



the individual affected, and is, in its nature, 
irreparable. It matters not that others within 
the sphere of the operation of the nuisance, 
whether public or private, may be affected 
likewise. Hunnicutt v. Eaton, 184 Ga. 485, 
191 S.E. 919 (1937). 

Livery stable. — A livery stable in a town is 
not necessarily a nuisance in itself; and 
therefore a court of equity has no jurisdic- 
tion to restrain by injunction either the 
completion of a building because intended 
for that purpose, or its appropriation to the 
use intended. Thomoson v. Sammon, 174 
Ga. 751, 164 S.E. 45 (1932). 

Hog and chicken feed manufacturing 
plant. — The mere erection of a plant for 
the manufacture of hog and chicken feed 
from the entrails from poultry and other 
animals is not without more a nuisance per 
se, and the allegations of the petition do not 
show it to be such. Poultryland, Inc. v. 
Anderson, 200 Ga. 549, 37 S.E.2d 785 
(1946). 

Noise. — Where noise accompanies an 
otherwise lawful business or pursuit, the 
question whether such noise is a nuisance 
depends upon the nature of the locality as a 
residence community or otherwise, on the 
degree of intensity and disagreeableness of 
the sounds, on their times and frequency, 
and in all cases, under the preceding rules, 
on their effect, not upon peculiar and un- 
usual individuals, but upon the ordinary, 
normal, reasonable persons of the locality. 
Warren Co. v. Dickson, 185 Ga. 481, 195 S.E. 
568 (1938). 

Noxious trade or business as nuisance. — 
To constitute a nuisance, it is not necessary 
that a noxious trade or business should 
endanger the health of the neighborhood. It 
is sufficient if it produces that which is 
offensive to the senses, and which renders 
the enjoyment of life and property uncom- 
fortable. Benton v. Pittard, 197 Ga. 843, 31 
S.E.2d 6 (1944); Poultryland, Inc. v. Ander- 
son, 200 Ga. 549, 37 S.E.2d 785 (1946); City 
of Macon v. Cannon, 89 Ga. App. 484, 79 
S.E.2d 816 (1954); Miller v. Coleman, 213 
Ga. 125, 97 S.E.2d 313 (1957). 

Obstructing streets. — The proper au- 
thorities may entertain an application to 
abate a nuisance caused by the obstruction 
of a city street or public alley. Carlisle v. 
Wilson, 110 Ga. 860, 36 S.E. 54 (1900); 
Robins v. McGehee, 127 Ga. 431, 56 S.E. 461 



12 



41-1-1 



GENERAL PROVISIONS 



41-1-1 



(1907); Hendricks v. Jackson, 143 Ga. 106, 
84 S.E. 440 (1915); Hendricks v. Carter, 21 
Ga. App. 527, 94 S.E. 807 (1918). 

Action to abate nuisance, caused by ob- 
struction of a city street or public alley, may 
be maintained by anyone whose property 
will be injuriously affected. Coker v. Atlanta, 
K. & N. Ry., 123 Ga. 483, 51 S.E. 481 (1905). 

Where, in an equitable petition, the only 
prayer for specific relief was that the defen- 
dant be temporarily restrained and perma- 
nently enjoined from maintaining a barri- 
cade or obstruction, which it had placed in a 
public street, or that it be required to abate 
the alleged nuisance, and the barricade or 
obstruction was fully completed and existing 
when the suit was instituted, it was erroneous 
to overrule a general demurrer (now motion 
to dismiss) to the petition as amended, 
which pointed out that the plaintiff was not 
entitled to the relief prayed for since it has 
an adequate and a complete remedy at law; a 
party who complains only of a completed 
existing obstruction in a public street must 
pursue the remedy which the statute affords 
him. City of East Point v. Henry Chanin 
Corp., 210 Ga. 628, 81 S.E.2d 812 (1954). 

If a street or alley was a public street or 
alley, the obstruction or encroachment upon 
it by an adjoining landowner would consti- 
tute a public nuisance subject to abatement 
on petition of a user of the alley if special 
injury were shown to have occurred to the 
user by the obstruction. Henderson v. 
Ezzard, 75 Ga. App. 724, 44 S.E.2d 397 
(1947). 

Where there is actual obstruction of a 
portion of a road intended for travel, actual 
interference or inconvenience is immaterial. 
Southeastern Pipe Line Co. v. Garrett ex rel. 
Le Sueur, 192 Ga. 817, 16 S.E.2d 753 (1941). 

Permanent obstruction of city streets. — 
The right to the use of the streets of a city is 
in the public, and any permanent obstruc- 
tion thereof which materially impedes travel 
is a nuisance per se. Williamson v. Souter, 
172 Ga. 364, 157 S.E. 463 (1931). 

Any permanent structure in a road which 
materially interferes with travel is a nuisance 
per se, and any obstruction permanent in 
nature or continuously maintained, which 
interferes with the free use of the road by the 
public, is a public nuisance, and it is imma- 
terial that space may be left on either side of 
the obstruction for the passage of the public. 



The public has the right to the unobstructed 
use of the whole road as it was acquired by 
the county or city. Harbuck v. Richland Box 
Co., 204 Ga. 352,' 49 S.E.2d 883 (1948), later 
appeal, 207 Ga. 537, 63 S.E.2d 333 (1951). 

Permanent structures which do not inter- 
fere with travel. — Permanent structures 
which do not interfere with travel, and which 
are erected for public purposes, such as 
telegraph and telephone poles, and the like, 
are permissible; it is not every use by an 
individual of a street or highway which con- 
stitutes a public nuisance. Southeastern Pipe 
Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 
817, 16S.E.2d753 (1941). 

Any permanent structure in a public road 
which materially interferes with travel 
therein is a nuisance per se. Southeastern 
Pipe Line Co. v. Garrett ex rel. Le Sueur, 192 
Ga. 817, 16S.E.2d753 (1941). 

If a street or alley was a public street or 
alley, the obstruction or encroachment upon 
it by an adjoining landowner would consti- 
tute a public nuisance subject to abatement 
on petition of a user of the alley if special 
injury were shown to have occurred to the 
user by the obstruction. Henderson v. 
Ezzard, 75 Ga. App. 724, 44 S.E.2d 397 
(1947). 

Where the evidence was uncontradicted 
that an alley had been used by the public in 
general for more than 20 years prior to its 
obstruction 30 years prior to trial by the 
defendant, a finding was demanded that the 
public had acquired a prescriptive right to 
the free and unobstructed use of the alley 
and that it was a public alley, and since 
prescription does not run against a munici- 
pality as to land held for the benefit of the 
public, such as a public alley, the obstruction 
must be removed. Henderson v. Ezzard, 75 
Ga. App. 724, 44 S.E.2d 397 (1947). 

Pavement broken by ordinary use. — A 
private corporation is not liable to a person 
injured by the crumbling of the pavement 
on a sidewalk which was caused by ordinary 
wear and tear of its trucks when crossing to 
enter one of its alleys. McAfee v. Atlantic Ice 
8c Coal Corp., 26 Ga. App. 25, 105 S.E. 631 
(1920). 

State prison labor on county projects. — 
Utilizing state prison labor on county 
projects is not, by itself, "nuisance" for 
which the county would be liable; the county 
could not be liable for a nuisance unless the 



13 



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NUISANCES 



41-1-1 



Illustrative Cases (Cont'd) 

act complained of amounted to a taking for 
public purposes. West v. Chatham County, 
177 Ga. App. 417, 339 S.E.2d 390 (1985). 

Public institution. — The fact alone that a 
proposed clinic is to be operated as a public 
institution, would not necessarily prevent it 
from being a nuisance if located in a resi- 
dential section. Benton v. Pittard, 197 Ga. 
843,31 S.E.2d6 (1944). 

"Purpresture." — A purpresture as de- 
fined at common law, and recognized in this 
and other states, is when one encroaches 
and makes that serviceable to himself which 
belongs to many. Thus, any encroachment 
upon a public street or highway is a 
purpresture; and if the public use is im- 
peded or rendered less commodious, such 
encroachment is generally not only a 
purpresture, but also technically a public 
nuisance, regardless of the degree of inter- 
ference with the common enjoyment. South- 
eastern Pipe Line Co. v. Garrett ex rel. Le 
Sueur, 192 Ga. 817, 16 S.E.2d 753 (1941). 

It is not true that every purpresture is a 
public nuisance. It may or may not be such, 
according to the particular facts. Although 
the two may coexist, either may exist without 
the other. The rule both in reason and by 
authority is that, unless the public sustain or 
may sustain some degree of inconvenience 
or annoyance in the use of a public highway 
or street or other public property, there is no 
public nuisance. Southeastern Pipe Line Co. 
v. Garrett ex rel. Le Sueur, 192 Ga. 817, 16 
S.E.2d753 (1941). 

While there may be language in some 
decisions indicating that a purpresture is 
always a public nuisance, the terms are not 
synonymous. Southeastern Pipe Line Co. v. 
Garrett ex rel. Le Sueur, 192 Ga. 817, 16 
S.E.2d 753 (1941). 

Railroads or other quasi-public facilities. 
— Injuries and inconveniences to persons 
residing near railroads or other quasi-public 
facilities from noises of locomotives, rum- 
bling of cars, vibrations produced thereby, 
and smoke, cinders, and soot, and the like, 
which result from the ordinary and neces- 
sary, and therefore proper, use and conduct 
of such works, are not nuisances, but are the 
necessary concomitants of the franchises 
granted. Central of Ga. R.R. v. Collins, 232 
Ga. 790, 209S.E.2d 1 (1974). 



If the relocation of the defendant's track 
was done under lawful authority, the act 
would not constitute a nuisance. If the track 
was relocated in a proper manner and was 
maintained in a proper manner there was no 
nuisance. Tracks are laid down for the pur- 
pose of operating trains thereon. If the 
trains are operated in a proper manner, such 
operation does not constitute a nuisance. 
Necessarily the running of trains makes 
some noise and produces some vibrations. 
Locomotives pulling trains emit some 
smoke, sparks, and cinders, but these inci- 
dental results do not necessarily constitute a 
nuisance, but are the necessary incidents of 
the franchise granted a railroad company in 
connection with the conduct of its business. 
Southern Ry. v. Leonard, 58 Ga. App. 574, 
199 S.E. 433 (1938). 

What is merely a matter of convenience to 
a railroad company is not a necessity and 
may constitute a nuisance. Central of Ga. 
R.R. v. Collins, 232 Ga. 790, 209 S.E.2d 1 
(1974). 

Sale of intoxicants. — The illegal sale of 
intoxicating liquors is a public nuisance, 
affecting the whole community in which the 
sale is carried on, and may be abated by 
process instituted in the name of the state, 
under this section. Lofton v. Collins, 117 Ga. 
434. 43 S.E. 708, 61 L.R.A. 150 (1903); 
Walker v. McNelly, 121 Ga. 114, 48 S.E. 718 
(1904); Dispensary Comm'rs v. Hooper, 128 
Ga. 99, 56 S.E. 997 (1907). 

The keeping or maintaining of any place 
or resort where intoxicating liquor is sold or 
kept for sale in a dry county, in violation of 
the provisions of Ch. 10 of T. 3 is a public, 
common nuisance, which may be abated by 
writ of injunction issued out of the superior 
court upon a bill filed by the attorney or the 
district attorney of the circuit, or by any 
citizen or citizens of such county. Ogletree v. 
Atkinson, 195 Ga. 32, 22 S.E.2d 783 (1942). 

A private citizen cannot maintain an ac- 
tion to enjoin the operation of a retail liquor 
business without a valid license in a "wet" 
county unless he has sustained special injury, 
and its abatement must proceed for the 
public on information filed by the solicitor 
general (now district attorney). Mabry v. 
Shikany, 223 Ga. 513, 156 S.E.2d 364 (1967). 

Smoke. — To constitute smoke a nui- 
sance, it must be such as to produce a visible, 
tangible, and appreciable injury to property, 



14 



41-1-1 



GENERAL PROVISIONS 



41-1-1 



or such as to render it specially uncomfort- 
able or inconvenient, or to materially inter- 
fere with the ordinary comfort of human 
existence. Asphalt Prods. Co. v. Marable, 65 
Ga. App. 877, 16 S.E.2d 771 (1941). 

Smoke, unaccompanied with noise or 
noxious vapor, noise alone, offensive vapors 
alone, although not injurious to health, may 
severally constitute a nuisance to the owner 
of adjoining or neighboring property. As- 
phalt Prods. Co. v. Marable, 65 Ga. App. 877, 
16S.E.2d771 (1941). 

A steam laundry is not a nuisance per se, 
and "smoke is not per se a nuisance" but a 
business otherwise lawful may become a 
nuisance in fact, or a nuisance per accidens, 
by reason of improper operation, or by 
reason of its location and the injury pro- 
duced by such a lawful business is actionable 
if it produces that which is offensive to the 
senses, and which renders the enjoyment of 
life and property uncomfortable. Gatewood 
v. Hansford, 75 Ga. App. 567, 44 S.E.2d 126 
(1947). 

Display and sale of tombstones and mon- 
uments. — The mere display and sale of 
tombstones and monuments designed and 
intended to be placed over the bodies and 
graves of deceased persons, such display 
being made on a lot in an exclusively resi- 
dential section and in such manner as to 
present a "graveyard appearance," is not a 
nuisance, and may not be enjoined by resi- 
dents and owners of property in the vicinity, 
on the grounds that it injuriously affects the 
values of their properties, and that the con- 
stant appearance of the spectacle would prey 
upon the minds and injuriously affect the 
health of the individuals. Grubbs v. Wooten, 
189 Ga. 390, 5 S.E.2d 874 (1939). 

Increase in traffic congestion. — Increase 
in traffic congestion in front of property 
resulting from construction of townhouse 
on adjacent property is a fanciful assertion of 
harm and does not constitute a nuisance. 
Goddard v. Irby, 255 Ga. 47, 335 S.E.2d 286 
(1985). 



Unsightliness of adjacent property. — The 

unsightliness of adjacent property alone, 
tending to devalue the adjoining property, is 
not such inconvenience as to amount to a 
nuisance under this section for which an 
injunction will lie. Jillson v. Barton, 139 Ga. 
App. 767, 229 S.E.2d 476 (1975). 

An interference with the natural flow of 
surface water may amount to a nuisance, 
without the presence of the element of 
danger to health. City of Macon v. Cannon, 
89 Ga. App. 484, 79 S.E.2d 816 (1954). 

Wrongful diversion of water onto property 
of another. — To wrongfully turn water on 
the lands of another is a nuisance. Goble v. 
Louisville 8c N.R.R., 187 Ga. 243, 200 S.E. 
259 (1938). 

A wholesale grocery business in a residen- 
tial section of a city is not necessarily a 
nuisance of itself, and therefore a court of 
equity will not enjoin the construction of a 
building to be used for that purpose, where 
there is no zoning regulation or restrictive 
covenant inhibiting such use. Roberts v. 
Rich, 200 Ga. 497, 37 S.E.2d 401 (1946). 

Diversion of surface water. — A county is 
subject to suit for damages, as well as injunc- 
tive relief, for maintaining a roadway in such 
manner as to constitute a continuing nui- 
sance by diverting surface water onto the 
owner's property, and it is no defense that 
the property is not adjacent to the roadway 
in question. Reid v. Gwinnett County, 242 
Ga. 88, 249 S.E.2d 559 (1978). 

Electromagnetic radiation. — In an action 
against a utility and power company for 
damages on theories of trespass and nui- 
sance arising from electromagnetic radia- 
tion, a grant of summary judgment on the 
trespass claim and directed verdict on the 
nuisance claim were proper for policy rea- 
sons since the scientific evidence was incon- 
clusive regarding the invasive quality of mag- 
netic fields from power lines. Jordan v. 
Georgia Power Co., 219 Ga. App. 690, 466 
S.E.2d601 (1995). 



OPINIONS OF THE ATTORNEY GENERAL 



A municipality's potential liability for acts 

of a probationer working on a community 
service project will have to be determined 
from the facts in each case, which will show 



whether the injury is the result of a nuisance, 
as defined in § 41-1-1, or negligence, as 
stated in § 36-33-1. 1975 Op. Any Gen. No. 
75-32. 



15 



41-1-1 



NUISANCES 
RESEARCH REFERENCES 



41-14 



Am. Jur. 2d. — 58 Am. Jur. 2d, Nuisances, 

§§ M. 

C.J.S. — 66 C.J.S., Nuisances, §§ 1, 6, 8 et 
seq. 

ALR. — Trolley poles in street as nui- 
sance, 2 ALR 496. 

Proximate cause as determining land- 
lord's liability, where injury results to a third 
person from a nuisance that becomes such 
only upon tenant's using the premises, 4 
ALR 740. 

Pesthouse or contagious disease hospital 
as nuisance, 4 ALR 995; 18 ALR 122; 48 ALR 
518. 

Steam whistle as a nuisance, 4 ALR 1343. 

Operation of railroad as nuisance to prop- 
erty, 6 ALR 723; 69 ALR 1188. 

Nuisance resulting from smoke alone as 
subject for injunctive relief, 6 ALR 1575. 

Fire escape as an attractive nuisance, 9 
ALR 271. 

Necessity of knowledge by owner of real 
estate of a nuisance maintained thereon by 
another to subject him to the operation of a 
statute providing for the abatement of nui- 
sances, or prescribing a pecuniary penalty 
therefor, 12 ALR 431; 121 ALR 642. 

Liability of purchaser of premises for nui- 
sance thereon created by predecessor, 14 
ALR 1094. 

Injunction against operation of talking 
machine, mechanical musical device, etc., 22 
ALR 1200. 

Noise from operation of industrial plant as 
nuisance, 23 ALR 1407; 90 ALR 1207. 

Nuisance by encroachment of walls or 
other parts of building on another's land as 
permanent or continuing, 29 ALR 839. 

Gas, water, or electric light plant as a 
nuisance, and the remedy therefor, 37 ALR 
800. 

Nuisance by manner of or circumstances 
attending performance of duty enjoined by 
law, 38 ALR 1437. 

Attractive nuisances, 45 ALR 982; 53 ALR 
1344; 60 ALR 1444. 

Public "comfort stations," 55 ALR 472. 

Induction, conduction and electrolysis, 56 
ALR 421. 

Tramroad or other private railroad as a 
nuisance, 57 ALR 943. 

Newspaper or magazine as a nuisance, 58 
ALR 614. 



Burning of soft coal as a nuisance, 58 ALR 
1225. 

Oil as nuisance; liability for damage to 
adjoining property, 60 ALR 483. 

Mosquitoes or other insect pests; condi- 
tions breeding as a nuisance, 61 ALR 1145. 

Injunction against use of property for 
circuses, carnivals, and similar itinerant out- 
door amusements, 63 ALR 407. 

Pipeline as nuisance, 75 ALR 1325. 

Dogs as nuisance, 79 ALR 1060. 

Bakery as a nuisance, 86 ALR 998. 

Liability of public contractor for damages 
from acts or conditions necessarily incident 
to work which would otherwise amount to 
nuisance, 97 ALR 205. 

Aeroplanes and aeronautics, 99 ALR 173. 

Cremation and crematories, 113 ALR 
1128. 

Automobile gas filling or supply station as 
a nuisance, 124 ALR 383. 

Gas company's liability for injury or dam- 
age by escaping gas, 138 ALR 870. 

Injunction against acts or conduct, in 
street or vicinity, tending to disparage plain- 
tiff's business or his merchandise, 144 ALR 
1181. 

Use of property for production of war 
goods as affecting question of nuisance, and 
injunction to abate same, 145 ALR 611. 

Supermarket, superstore, or public mar- 
ket as a nuisance, 146 ALR 1407. 

Medical clinic as a nuisance, 153 ALR 972. 

Zoning regulation as affecting question of 
nuisance within zoned area, 166 ALR 659. 

Racing, or betting on races, as nuisance, 
166 ALR 1264. 

Attracting people in such numbers as to 
obstruct access to the neighboring premises, 
as nuisance, 2 ALR2d 437. 

Coalyard as a nuisance, 8 ALR2d 419. 

Public regulation and prohibition of 
sound amplifiers or loud-speaker broadcasts 
in streets and other public places, 10 ALR2d 
627. 

Animal rendering or bone-boiling plant 
or business as nuisance, 17 ALR2d 1269. 

Stockyard as a nuisance, 18 ALR2d 1033. 

Liability for injury to property occasioned 
by oil, water, or the like flowing from well, 19 
ALR2d 1025. 

Liability for injury on parking or strip 
between sidewalk and curb, 19 ALR2d 1053; 
98ALR3d439. 



16 



41-1-1 



GENERAL PROVISIONS 



41-1-1 



Use of phonograph, loudspeaker, or other 
mechanical or electrical device for broad- 
casting music, advertising, or sales talk from 
business premises, as nuisance, 23 ALR2d 
1289. 

Dust as nuisance, 24 ALR2d 194; 79 
ALR3d 253. 

Tourist or trailer camp, motor court or 
motel, as nuisance, 24 ALR2d 571. 

Private school as nuisance, 27 ALR2d 
1249. 

Quarries, gravel pits, and the like, as nui- 
sances, 47 ALR2d 490. 

Cemetery or burial ground as nuisance, 
50ALR2d 1324. 

Public dump as nuisance, 52 ALR2d 1134. 

Landowner's or occupant's liability in 
damages for escape, without negligence, of 
harmful gases or fumes from premises, 54 
ALR2d 764; 2 ALR4th 1054. 

Automobile sales lot or used car lot as 
nuisance, 56 ALR2d 776. 

Attractive nuisance doctrine as applied to 
machine or machinery in motion other than 
vehicles, railroad cars, or streetcars, 62 
ALR2d 898. ' 

Golf course or driving range as a nuisance, 
68ALR2d 1331. 

Contributory negligence or assumption of 
risk as defense to action for damages from 
nuisance — modern views, 73 ALR2d 1378. 

Water sports, amusements, or exhibitions 
as nuisance, 80 ALR2d 1124. 

Parking lot or place as nuisance, 82 
ALR2d 413. 

Practice of exacting usury as a nuisance or 
ground for injunction, 83 ALR2d 848. 

Nonencroaching vegetation as a private 
nuisance, 83 ALR2d 936. 

Automobile wrecking yard or place of 
business as nuisance, 84 ALR2d 653. 

Oil refinery as a nuisance, 86 ALR2d 1322. 

Liability of abutting owner or occupant 
for condition of sidewalk, 88 ALR2d 331. 

Drive-in restaurant or cafe as nuisance, 91 
ALR2d 572. 

Dairy, creamery, or milk distributing 
plant, as nuisance, 92 ALR2d 974. 

Drive-in theater or other outdoor dra- 
matic or musical entertainment as nuisance, 
93ALR2d 1171. 

Keeping pigs as a nuisance, 2 ALR3d 931. 

Keeping poultry as nuisance, 2 ALR3d 
965. 

Motorbus or truck terminal as nuisance, 2 
ALR3d 1372. 



Electric generating plant or transformer 
station as nuisance, 4 ALR3d 902. 

Saloons or taverns as nuisance, 5 ALR3d 
989. 

Keeping of dogs as enjoinable nuisance, 
11 ALR3d 1399. 

Institution for the punishment or rehabil- 
itation of criminals, delinquents, or alcohol- 
ics as enjoinable nuisance, 21 ALR3d 1058. 

Gun club, or shooting gallery or range, as 
nuisance, 26 ALR3d 661. 

Keeping horses as nuisance, 27 ALR3d 
627. 

Children's playground as nuisance, 32 
ALR3d 1127. 

Billboards and other outdoor advertising 
signs as civil nuisance, 38 ALR3d 647. 

Modern status of rules as to balance of 
convenience or social utility as affecting re- 
lief from nuisance, 40 ALR3d 601. 

Operation of incinerator as nuisance, 41 
ALR3d 1009. 

Laundry or drycleaning establishment as 
nuisance, 41 ALR3d 1236. 

Automobile racetrack or drag strip as nui- 
sance, 41 ALR3d 1273. 

Residential swimming pool as nuisance, 49 
ALR3d 545. 

Public swimming pool as nuisance, 49 
ALR3d 652. 

Gasoline or other fuel storage tanks as 
nuisance, 50 ALR3d 209. 

Exhibition of obscene motion pictures as 
nuisance, 50 ALR3d 696. 

Liability of oil and gas lessee or operator 
for injuries to or death of livestock, 51 
ALR3d 304. 

Absolute liability for blasting operations as 
extending to injury or damage not directly 
caused by debris or concussion from explo- 
sion, 56ALR3d 1017. 

Zoo as nuisance, 58 ALR3d 1126. 

Pornoshops or similar places disseminat- 
ing obscene materials as nuisance, 58 ALR3d 
1134. 

Interference with radio or television re- 
ception as nuisance, 58 ALR3d 1142. 

Attractive nuisance doctrine as applied to 
trees, shrubs, and the like, 59 ALR3d 848. 

Recovery of damages for emotional dis- 
tress, fright, and the like, resulting from 
blasting operations, 75 ALR3d 770. 

Airport operations or flight of aircraft as 
nuisance, 79 ALR3d 253. 

Existence of, and relief from, nuisance 



17 



41-1-2 



NUISANCES 



41-1-2 



created by operation of air conditioning or 
ventilating equipment, 79 ALR3d 320. 

Fence as nuisance, 80 ALR3d 962. 

Keeping bees as nuisance, 88 ALR3d 992. 

Liability of swimming facility operator for 
injury to or death of trespassing child, 88 
ALR3d 1197. 

Liability for injury to or death of child 
from electric wire encountered while climb- 
ing tree, 91 ALR3d 616. 

Liability for overflow of water confined or 
diverted for public power purposes, 91 
ALR3d 1065. 

Governmental liability from operation of 
zoo, 92 ALR3d 832. 

Liability for injuries in connection with ice 
or snow on nonresidential premises, 95 
ALR3d 15. 

Bells, carillons, and the like, as nuisance, 
95ALR3d 1268. 

Liability, in motor vehicle-related cases, of 
governmental entity for injury or death re- 
sulting from defect or obstruction on road- 
side parkway or parking strip, 98 ALR3d 439. 

Recovery in trespass for injury to land 



caused by airborne pollutants, 2 ALR4th 
1054. 

Funeral home as private nuisance, 8 
ALR4th 324, 

Windmill as nuisance, 36 ALR4th 1159. 

Computer as nuisance, 45 ALR4th 1212. 

Telephone calls as nuisance, 53 ALR4th 
1153. 

Tree or limb falling onto adjoining private 
property: personal injury and property dam- 
age liability, 54 ALR4th 530. 

Liability of private landowner for vegeta- 
tion obscuring view at highway or street 
intersection, 69 ALR4th 1092. 

Tort liability for polludon from under- 
ground storage tank, 5 ALR5th 1 . 

State and local government control of 
polludon from underground storage tanks, 
11 ALR5th 388. 

Nuisance as entitling owner or occupant 
of real estate to recover damages for per- 
sonal inconvenience, discomfort, annoy- 
ance, anguish, or sickness, distinct from, or 
in addition to, damages for depreciation in 
value of property or its use, 25 ALR5th 568. 



41-1-2. Glasses of nuisances; public and private nuisances defined. 

Nuisances are either public or private. A public nuisance is one which 
damages all persons who come within the sphere of its operation, though it 
may vary in its effects on individuals. A private nuisance is one limited in its 
injurious effects to one or a few individuals. (Orig. Code 1863, § 2939; 
Code 1868, § 2946; Code 1873, § 2997; Code 1882, § 2997; Civil Code 
1895, § 3858; Civil Code 1910, § 4454; Code 1933, § 72-102.) 



Cross references. — When infraction of 
public duty gives cause of action to individ- 
ual, § 51-1-7. 

Law reviews. — For article discussing fed- 
eral liability for pollution abatement in con- 
demnation actions, see 17 Mercer L. Rev. 
364 (1966). For article discussing Georgia's 
practice of exposing municipalities to tort 



liability through the use of nuisance law, see 
12 Ga. St. B.J. 11 (1975). 

For note, "Town of Fort Oglethorpe v. 
Phillips: A Clarification of Georgia's Public 
Nuisance Law?," see 5 Ga. St. BJ. 474 
(1969) . For note discussing the abatement of 
nonconforming uses as nuisances, see 10 Ga. 
St. B.J. 302 (1973). 



JUDICIAL DECISIONS 



Analysis 

General Consideration 
Private Nuisance 
Public Nuisance 



18 



41-1-2 



GENERAL PROVISIONS 



41-1-2 



General Consideration 

Notice before suit not required. — An 

•action may be maintained under this section 
for damages resulting from a nuisance, with- 
out notice or request to abate it. Exley v. 
Southern Cotton Oil Co., 151 F. 101 (S.D. 
Ga. 1907). 

Cited in Justices of Inferior Court v. Grif- 
fin & W. Point Plank Rd. Co., 15 Ga. 39 
(1854); Ison v. Manley, 76 Ga. 804 (1886); 
Kavanagh v. Mobile 8c G.R.R., 78 Ga. 271, 2 
S.E. 636 (1887); Cannon v. Merry, 116 Ga. 
291, 42 S.E. 274 (1902); Lofton v. Collins, 
117 Ga. 434, 43 S.E. 708 (1903); Savannah, F. 
8c W. Ry. v. Gill, 118 Ga. 737, 45 S.E. 623 
(1903); Edison v. Ramsey, 146 Ga. 767, 92 
S.E. 513 (1917); Holman v. Athens Empire 
Laundry Co., 149 Ga. 345, 100 S.E. 207, 6 
ALR 1564 (1919); Dean v. State, 151 Ga. 371, 
106 S.E. 792, 40 ALR 1132 (1921); Town of 
Rentz v. Roach, 154 Ga. 491, 115 S.E. 94 
(1922); Thrasher v. City of Adanta, 178 Ga. 
514, 173 S.E. 817 (1934); Warren Co. v. 
Dickson, 185 Ga. 481, 195 S.E. 568 (1938); 
Harbuck v. Richland Box Co., 204 Ga. 352, 
49 S.E.2d 883 (1948); Isley v. Litde, 219 Ga. 
23, 131 S.E.2d 623 (1963); Burgess v. 
Johnson, 223 Ga. 427, 156 S.E.2d 78 (1967); 
Miree v. United States, 526 F.2d 679 (5th Cir. 
1976); Abee v. Stone Mt. Mem. Ass'n, 169 
Ga. App. 167, 312 S.E.2d 142 (1983); Jones v. 
State, 265 Ga. 84, 453 S.E.2d 716 (1995); 
Moreland v. Cheney, 267 Ga. 469, 479 S.E.2d 
745 (1997). 

Private Nuisance 

Definition. — A "private nuisance" is one 
limited in its injurious effect to one or a few 
individuals, which may injure either the per- 
son or property or both, and in either case a 
right of action accrues. Miller v. Coleman, 
213 Ga. 125, 97 S.E.2d 313 (1957). 

Mere violation of an ordinance does not 
create a private nuisance. Jillson v. Barton, 
139 Ga. App. 767, 229 S.E.2d 476 (1975). 

Actionability of private nuisance. — The 
creation of a private nuisance is actionable, 
without regard to the question of negli- 
gence. Bonner v. Welborn, 7 Ga. 296 (1849); 
Exley v. Southern Cotton Oil Co., 151 F. 101 
(S.D. Ga. 1907). 



Public Nuisance 

Extensive injuries not required. — The 

language in this section is not used in the 
sense that every person in the area must 
have been actually hurt or injured in order 
to show a public nuisance. Atlanta Process- 
ing Co. v. Brown, 227 Ga. 203, 179 S.E.2d 752 
(1971). 

Gaming house. — The maintenance of a 
gaming house or a gaming place is a public 
nuisance. Gullatt v. State ex rel. Collins, 169 
Ga. 538, 150 S.E. 825 (1929); Albany The- 
ater, Inc. v. Short, 171 Ga. 57, 154 S.E. 895 
(1930). 

Street-flow obstructions. — Any perma- 
nent structure in a street which materially 
interferes with travel thereon is a public 
nuisance. City of East Point v. Henry Chanin 
Corp., 210 Ga. 628, 81 S.E.2d 812 (1954). 

The landing and steps of a church, though 
allegedly so negligently constructed as to be 
hazardous to life and limb, do not constitute 
a public nuisance since there is no right 
common to all of the public to use the steps 
and landing of a church of a particular 
denomination. Cox v. Dejarnette, 104 Ga. 
App. 664, 123 S.E.2d 16 (1961). 

Plate glass doors. — Maintenance and 
operation of plate glass doors in public civic 
center not public nuisance. See Zellers v. 
Theater of Stars, Inc., 171 Ga. App. 406, 319 
S.E.2d553 (1984). 

Barricades on a county road marking the 
approaches to the former site of a timber 
bridge spanning a railroad track did not 
constitute a public nuisance. Kitchen v. CSX 
Transp., Inc., 265 Ga. 206, 453 S.E.2d 712 
(1995). 

Repeated violations with threats of con- 
tinuing same. — Constant and repeated vio- 
lations of former statutes relating to the 
business of buying wages or salaries, and to 
the small-loan business, with threats to con- 
tinue the same, do not amount to such a 
public nuisance as may be abated and pre- 
vented by a suit in the name of the state. 
State ex rel. Boykin v. Ball Inv. Co., 191 Ga. 
382, 12S.E.2d574 (1940). 

Indictment for public nuisance. — A pub- 
lic nuisance is the subject of indictment; not 
of action. South Carolina R.R. v. Moore & 
Philpot, 28 Ga. 398, 73 Am. Dec. 778 (1859). 



19 



41-1-3 



NUISANCES 



41-1-3 



OPINIONS OF THE ATTORNEY GENERAL 



Obstruction of crossing on public highway 
by railroad. — A public nuisance possibly 
occurs if a railroad blocks a crossing on a 
public highway for an unreasonable period 
of time; for such an action to lie against a 



railroad, it must be shown that the particular 
act is an interference or annoyance to the 
public in the common use of public high- 
ways. 1970 Op. Att'y Gen. No. 70-58. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 58 Am. Jur. 2d, Nuisances, 
§§32-49. 

C.J.S. — 66 C.J.S., Nuisances, § 2. 

ALR. — - Trolley poles in street as nui- 
sance, 2 ALR 496. 

Noise from operation of industrial plant as 
nuisance, 23 ALR 1407; 90 ALR 1207. 

Nuisance by encroachment of walls or 
other parts of building on another's land as 
permanent or continuing, 29 ALR 839. 

Amusement park as nuisance, 33 ALR 725. 

Gas, water, or electric light plant as a 
nuisance, and the remedy therefor, 37 ALR 
800. 

Pesthouse or contagious disease hospital 
as nuisance, 48 ALR 518. 

Aeroplanes and aeronautics, 99 ALR 173. 

Legal aspects of radio communication and 
broadcasting, 124 ALR 982; 171 ALR 765. 

Nuisance within contemplation of statute 
imposing upon municipality duty to keep 
streets and other public places free from 
"nuisance," as absolute nuisance or as qual- 
ified nuisance, dependent upon negligence, 
155 ALR 60. 

Racing, or betting on races, as nuisance, 
166 ALR 1264. 

Animal rendering or bone-boiling plant 
or business as nuisance, 17 ALR2d 1269. 

Liability for injury to property occasioned 



by oil, water, or the like flowing from well, 19 
ALR2d 1025. 

Landowner's or occupant's liability in 
damages for escape, without negligence, of 
harmful gases or fumes from premises, 54 
ALR2d 764; 2 ALR4th 1054. 

Automobile sales lot or used car lot as 
nuisance, 56 ALR2d 776. 

Saloons or taverns as nuisance, 5 ALRSd 
989. 

Keeping of dogs as enjoinable nuisance, 
11 ALR3d 1399. 

Children's playground as nuisance, 32 
ALR3d 1127. 

Public swimming pool as nuisance, 49 
ALR3d 652. 

Exhibition of obscene motion pictures as 
nuisance, 50 ALR3d 969. 

Unsolicited mailing, distribution, house 
call, or telephone call as invasion of privacy, 
56 ALR3d 457. 

Right to maintain action to enjoin public 
nuisance as affected by existence of pollu- 
tion control agency, 60 ALR3d 665. 

Recovery in trespass for injury to land 
caused by airborne pollutants, 2 ALR4th 
1054. 

Car wash as nuisance, 4 ALR4th 1308. 

Funeral home as private nuisance, 8 
ALR4th 324. 



41-1-3. Right of action for public nuisance generally. 

A public nuisance generally gives no right of action to any individual. 
However, if a public nuisance in which the public does not participate 
causes special damage to an individual, such special damage shall give a 
right of action. (Orig. Code 1863, §§ 2939, 2940; Code 1868, §§ 2946, 
2947; Code 1873, §§ 2997, 2998; Code 1882, §§ 2997, 2998; Civil Code 
1895, §§ 3858, 3859; Civil Code 1910, §§ 4454, 4455; Code 1933, § 72-103.) 

Cross references. — Penalty for maintain- common disturbance to neighborhood, 
ing house in which gaming, drinking, or § 16-11-44. When infraction of public duty 
other misbehavior occurs, or which presents gives cause of action to individual, § 51-1-7. 



20 



41-1-3 



GENERAL PROVISIONS 



41-1-3 



Law reviews. — For article discussing 
Georgia's practice of exposing municipali- 
ties to tort liability through the use of nui- 
sance law, see 12 Ga. St. BJ. 11 (1975). For 
article surveying Georgia cases dealing with 
environment, natural resources, and land 
use from June 1977 through May 1978, see 
30 Mercer L. Rev. 75 (1978). 



For note, "Town ot Fort Oglethorpe v. 
Phillips: A Clarification of Georgia's Public 
Nuisance Law?," see 5 Ga. St. B.J. 474 
(1969). For note discussing the abatement of 
nonconforming uses as nuisances, see 10 Ga. 
St. BJ. 302 (1973). 



JUDICIAL DECISIONS 



Right of action grows out of special injury. 

— Even though a given condition may con- 
stitute a public nuisance, a citizen suffering 
special damage has a cause of action against 
the person creating or maintaining the 
same. City of Blue Ridge v. Kiker, 189 Ga. 
717, 7 S.E.2d 237 (1940). 

Even though a given condition may con- 
stitute a public nuisance, a citizen suffering 
special damage by reason of sickness of 
himself or family, or depreciation of his 
property, as the result thereof, has a cause of 
action against the party creating or main- 
taining the nuisance. Thrasher v. City of 
Atlanta, 178 Ga. 514, 173 S.E. 817 (1934). 

All injury to health is special, and neces- 
sarily limited in its effect to the individual 
affected, and is, in its nature, irreparable. It 
matters not that others within the sphere of 
the operation of the nuisance, whether pub- 
lic or private, may be affected likewise. De 
Vaughn v. Minor, 77 Ga. 809, 1 S.E. 433 
(1887); Hunnicutt v. Eaton, 184 Ga. 485, 191 
S.E. 919 (1937). 

Necessity of showing special damages. — 
In order for an individual to abate a public 
nuisance it is necessary that he show special 
damages. Moon v. Clark, 192 Ga. 47, 14 
S.E.2d481 (1941). 

Interference with egress to and ingress 
from highway. — A landowner may maintain 
a suit in equity to enjoin further interference 
with his means of egress to and ingress from 
the public highway, when such interference 
amounts to a continuing nuisance or tres- 
pass, and where an injunction would prevent 
a multiplicity of suits. Barham v. Grant, 185 
Ga. 601, 196 S.E. 43 (1937). 

Damages for one whose means of egress 
from and ingress to his property abutting on 
a public highway is illegally and unnecessar- 
ily interfered with may be the depreciation 
in market value, if the obstruction is a per- 
manent one, or the damage to business and 



loss of profits. Punitive damages may be 
recovered where the circumstances are such 
as to justify the allowance thereof. Holland v. 
Shackleford, 220 Ga. 104, 137 S.E.2d 298 
(1964). 

Plaintiff must allege special damage within 
petition. — Allegations of petition in which 
petitioners sought equitable relief "as indi- 
viduals, citizens, and taxpayers" from the 
closing of a railroad crossing were insuffi- 
cient to show special damage to petitioners, 
or any damage not shared equally by all 
other "individuals, citizens, and taxpayers," 
and the petition was therefore insufficient 
for the grant of any relief to the petitioners 
as individuals, citizens, and taxpayers. State 
Hwy. Dep't v. Reed, 211 Ga. 197, 84 S.E.2d 
561 (1954). 

Allegations of petition seeking to enjoin 
an alleged nuisance in operating asphalt and 
cement-mixing and manufacturing plant as 
to the spilling of concrete and asphalt in a 
public street and its effect on persons walk- 
ing along the street related to a public 
nuisance, and stating no special damage, 
showed no cause of action. Asphalt Prods. 
Co. v. Beard, 189 Ga. 610, 7 S.E.2d 172 
(1940). 

Building of dam. — The right of a com- 
pany to build a dam does not include a right 
to build or maintain it in such negligent or 
improper manner as to cause a nuisance 
injurious to the health of the adjacent com- 
munity. For damages arising from such 
things an action will lie. Thrasher v. City of 
Atlanta, 178 Ga. 514, 173 S.E. 817 (1934). 

Damages recoverable include injury to 
health. — In this state damages recoverable 
on account of a nuisance are not limited to 
injury to realty, but injury to health may 
furnish a basis for such recovery. Thrasher v. 
City of Adanta, 178 Ga. 514, 173 S.E. 817 
(1934). 

A municipality need not be joined as a 
party to an action to abate a nuisance which 



21 



41-1-3 



NUISANCES 



414-a 



specially injured the plain tiff. Trust Co. v. 
Ray, 125 Ga. 485, 54 S.E. 145 (1906). 
Right of action where road is obstructed. 

— To maintain an action for an injury 
received from an obstruction in a highway, 
two things must concur: an obstruction in 
the road by the fault of the defendant, and 
no want of ordinary care to avoid it on the 
part of the plaintiff. Bran an v. May, 17 Ga. 
136 (1855). 

The right of a municipality to grant a 
person the power to obstruct a street, is 
dependent on legislative authority, hence, 
the unauthorized obstruction of a street 
furnishing an avenue of approach to one's 
place of business is actionable. Coker v. 
Atlanta, K. & N. Ry., 123 Ga. 483, 51 S.E. 481 
(1905); Hendricks v. Jackson, 143 Ga. 106, 
84 S.E. 440 (1915). 

Where the owner of adjoining property 
suffers special damage from the unlawful 
running of cars in a public street, this enti- 
tled her to maintain an action. Kavanagh v. 
Mobile 8c G.R.R., 78 Ga. 271, 2 S.E. 636 
(1887). 



Where sickness results from the stagnation 
of a pool of water a cause of action exists. 
Savannah, F. & W. Ry. v. Parish, 117 Ga. 893, 
45 S.E. 280 (1903). 

Cited in Vason v. South Carolina R.R., 42 
Ga. 631 (1871); Austin v. Augusta Term. Ry., 
108 Ga. 671, 34 S.E. 852 (1899); Sammons v. 
Sturgis, 145 Ga. 663, 89 S.E. 774 (1916); 
Holman v. Athens Empire Laundry Co., 149 
Ga. 345, 100 S.E. 207 (1919); Knox v. Reese, 
149 Ga. 379, 100 S.E. 371 (1919); Warren 
Co. v. Dickson, 185 Ga. 481, 195 S.E. 568 
(1938); Poole v. Arnold, 187 Ga. 734, 2 
S.E.2d 83 (1939); Floyd v. City of Albany, 105 
Ga. App. 31, 123 S.E.2d 446 (1961); Save 
The Bay Comm., Inc. v. Mayor of Savannah, 
227 Ga. 436, 181 S.E.2d 351 (1971); Brock v. 
Hall County, 239 Ga. 160, 236 S.E.2d 90 
(1977); Stephens v. Tate, 147 Ga. App. 366, 
249 S.E.2d 92 (1978); Brand v. Wilson, 252 
Ga. 416, 314 S.E.2d 192 (1984); Rea v. 
Bunce, 179 Ga. App. 628, 347 S.E.2d 676 
(1986). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 58 Am. Jur. 2d, Nuisances, 
§§ 254-259. 

C.J.S. — 66 C.J.S., Nuisances, §§ 78, 79. 

ALR. — Trolley poles in street as nui- 
sance, 2 ALR 496. 

Right to enjoin threatened or anticipated 
nuisance, 32 ALR 724; 55 ALR 880. 

Gas, water, or electric light plant as a 
nuisance, and the remedy therefor, 37 ALR 
800. 

Automobile gas filling or supply station as 
a nuisance, 124 ALR 383. 

Liability of private persons or corpora- 
tions draining into sewer maintained by mu- 
nicipality or other public body for damages 
to riparian owners or others, 170 ALR 1192. 

Attracting people in such numbers as to 
obstruct access to the neighboring premises, 
as nuisance, 2 ALR2d 437. 

Animal rendering or bone-boiling plant 
or business as nuisance, 17 ALR2d 1269. 

Sewage disposal plant as nuisance, 40 
ALR2d 1177. 

Liability for property damage caused by 
vibrations, or the like, without blasting or 
explosion, 79 ALR2d 966. 



Liability of abutting owner or occupant 
for condition of sidewalk, 88 ALR2d 331. 

Statutes, ordinances, or regulations relat- 
ing to private residential swimming pools, 92 
ALR2d 1283. 

Saloons or taverns as nuisance, 5 ALR3d 
989. 

Water distributor's liability for injuries due 
to condition of service lines, meters, and the 
like, which serve individual consumer, 20 
ALR3d 1363. 

Liability for injury or damage caused by 
rocket testing or firing, 29 ALR3d 556. 

Children's playground as nuisance, 32 
ALR3d 1127. 

Liability in connection with fire or explo- 
sion of explosives while being stored or 
transported, 35 ALR3d 1177. 

Public swimming pool as nuisance, 49 
ALR3d 652. 

Airport operations or flight of aircraft as 
nuisance, 79 ALR3d 253. 

Existence of, and relief from, nuisance 
created by operation of air conditioning or 
ventilating equipment, 79 ALR3d 320. 

Liability of swimming facility operator for 
injury to or death of diver allegedly resulting 



22 



41-1-4 



GENERAL PROVISIONS 



41-1-4 



from hazardous condition in water, 85 
ALR3d 750. 

Zoning regulations limiting use of prop- 
erty near airport as taking of property, 18 
ALR4th 542. 

Airport operations or flight of aircraft as 



constituting taking or damaging of property, 
22 ALR4th 863. 

What constitutes special injury that enti- 
tles private party to maintain action based on 
public nuisance — modern cases, 71 ALR4th 
13. 



41-1-4. Right of action for private nuisance generally. 

A private nuisance may injure either a person or property, or both, and 
for that injury a right of action accrues to the person who is injured or 
whose property is damaged. (Orig. Code 1863, §§ 2939, 2941; Code 1868, 
§§ 2946, 2948; Code 1873, §§ 2997, 2999; Code 1882, §§ 2997, 2999; Civil 
Code 1895, §§ 3858, 3860; Civil Code 1910, §§ 4454, 4456; Code 1933, 
§ 72-104.) 



Law reviews. — For note discussing nui- 
sance action as a remedy for damage caused 
by sonic booms, see 2 Ga. L. Rev. 83 (1967). 
For note, "Town of Fort Oglethorpe v. 



Phillips: A Clarification of Georgia's Public 
Nuisance Law?," see 5 Ga. St. BJ. 474 
(1969). 



JUDICIAL DECISIONS 



Coming to a nuisance. — The old rule, 
maintained by some authorities, that coming 
to a nuisance will prevent a person so com- 
ing from making any complaint, has long 
since been exploded. Miller v. Coleman, 213 
Ga. 125, 97 S.E.2d 313 (1957). 

One who purchases land adjoining a pri- 
vate nuisance may abate it. City of Rentz v. 
Roach, 154 Ga. 491, 115 S.E. 94 (1922). 

Charge that plaintiffs had the right to 
move near a kennel though they knew it was 
a nuisance, and could rely on the presump- 
tion that the nuisance would be abated and 
stopped, was not erroneous. Miller v. 
Coleman, 213 Ga. 125, 97 S.E.2d 313 (1957). 

Recovery for both personal and property 
damage. — Damages for discomfort and 



annoyance caused to the owner and his 
family are separate and distinct from dam- 
age to the value of the realty and do not 
constitute a double recovery for a single 
injury. In an action for nuisance, the prop- 
erty owners may recover for both damage to 
person and damage to property. City of 
Atlanta v. Murphy, 194 Ga. App. 652, 391 
S.E.2d 474 (1990). 

Cited in Thrasher v. City of Atlanta, 178 
Ga. 514, 173 S.E. 817 (1934); Scott v. 
Reynolds, 70 Ga. App. 545, 29 S.E.2d 88 
(1944); Southeastern Liquid Fertilizer Co. v. 
Chapman, 103 Ga. App. 773, 120 S.E.2d 651 
(1961); Turner v. Ross, 115 Ga. App. 507, 
154S.E.2d798 (1967). 



RESEARCH REFERENCES 



Am. jur. 2d. — 58 Am. Jur. 2d, Nuisances, 
§§ 254-258, 268, 269. 

CJ.S. — 66 C.J.S., Nuisances, §§ 80-82. 

ALR. — Effect of delay in seeking equita- 
ble relief against nuisance, 6 ALR 1098. 

Right to enjoin threatened or anticipated 
nuisance, 32 ALR 724; 55 ALR 880. 

Oil as nuisance; liability for damage to 
adjoining property, 60 ALR 483. 



Automobile gas filling or supply station as 
a nuisance, 124 ALR 383. 

Legal aspects of radio communication and 
broadcasting, 124 ALR 982; 171 ALR 765. 

Nuisance as en tiding owner or occupant 
of real estate to recover damages for per- 
sonal inconvenience, discomfort, annoy- 
ance, anguish, or sickness, distinct from, or 
in addition to, damages for depreciation in 



23 



41-1-5 



NUISANCES 



41-1-5 



value of property or its use, 142 ALR 1307. 

Injunction against acts or conduct, in 
street or vicinity, tending to disparage plain- 
tiff's business or his merchandise, 144 ALR 
1181. 

Supermarket, superstore, or public mar- 
ket as a nuisance, 146 ALR 1407. 

Liability of private persons or corpora- 
tions draining into sewer maintained by mu- 
nicipality or other public body for damages 
to riparian owners or others, 170 ALR 1192. 

When statute of limitation commences to 
run against damage from overflow of land 
caused by artificial construction or obstruc- 
tion, 5 ALR2d 302. 

Casting of light on another's premises as 
constituting actionable wrong, 5 ALR2d 705; 
79 ALR3d 253. 

Fire as attractive nuisance, 27 ALR2d 
1187. 

Private school as nuisance, 27 ALR2d 
1249. 

Liability of landowner for injury to or 
death of child caused by cave-in or landslide, 
28 ALR2d 195. 

Liability of landowner for injury to or 
death of child resulting from piled or 
stacked lumber or other building materials, 
28 ALR2d 218. 

Expense incurred by injured party in rem- 
edying temporary nuisance or in preventing 
injury as element of damages recoverable, 
41 ALR2d 1064. 

Landowner's or occupant's liability in 
damages for escape, without negligence, of 
harmful gases or fumes from premises, 54 
ALR2d 764; 2 ALR4th 1054. 



Rule of municipal immunity from liability 
for acts in performance of governmental 
functions as applicable to personal injury or 
death as result of a nuisance, 56 ALR2d 
1415. 

Liability for property damage caused by 
vibrations, or the like, without blasting or 
explosion, 79 ALR2d 966. 

Nonencroaching vegetation as a private 
nuisance, 83 ALR2d 936. 

Liability of vendor or grantor of real estate 
for personal injury to purchaser or third 
person due to defective condition of pre- 
mises, 48 ALR3d 1027. 

Residential swimming pool as nuisance, 49 
ALR3d 545. 

Airport operations or flight of aircraft as 
nuisance, 79 ALR3d 253. 

Operation of cement plant as nuisance, 82 
ALR3d 1004. 

Recovery in trespass for injury to land 
caused by airborne pollutants, 2 ALR4th 
1054. 

Funeral home as private nuisance, 8 
ALR4th 324. 

Zoning regulations limiting use of prop- 
erty near airport as taking of property, 18 
ALR4th 542. 

Airport operations or flight of aircraft as 
constituting taking or damaging of property, 
22 ALR4th 863. 

Encroachment of trees, shrubbery, or 
other vegetation across boundary line, 65 
ALR4th 603. 



41-1-5. Right of action of alienee of injured property for continuance of 
nuisance; necessity for request to abate nuisance. 

(a) The alienee of a person owning property injured may maintain an 
action for continuance of the nuisance for which the alienee of the property 
causing the nuisance is responsible. 

(b) Prior to commencement of an action by the alienee of the property 
injured against the alienee of the property causing the nuisance, there must 
be a request to abate the nuisance. (Code 1863, § 2943; Code 1868, § 2950; 
Code 1873, § 3001; Code 1882, § 3001; Civil Code 1895, § 3862; Civil Code 
1910, § 4458; Code 1933, § 72-105; Ga. L. 1991, p. 94, § 41.) 



Cross references. — Covenants and war- 
ranties relating to land transactions gener- 
ally, § 44-5-60 et seq. 



Law reviews. — For article discussing nui- 
sances as "Hidden Liens," see 14 Ga. St. B.J. 

32 (1977). 



24 



41-1-5 



GENERAL PROVISIONS 



41-1-5 



Analysis 



JUDICIAL DECISIONS 



General Consideration 

Notice of Existence of Nuisance 



General Consideration 

This section is a codification of the com- 
mon law. Bonner v. Wei born, 7 Ga. 296 
(1849); Roberts v. Georgia Ry. & Power Co., 
151 Ga. 241, 106 S.E. 258 (1921). 

Section inapplicable where alienee in- 
duces original injury. — This section does 
not apply where the original injury was 
caused by the alienee, hence, no notice to 
abate is necessary. Southern Ry. v. Puckett, 
121 Ga. 322, 48 S.E. 968 (1904); Davis v. 
Beard, 202 Ga. App. 784, 415 S.E.2d 522 
(1992). 

Cited in Phinizy v. City Council, 47 Ga. 266 
(1872); Felker v. Calhoun, 64 Ga. 514 
(1880); Williams v. Southern Ry., 140 Ga. 
713, 79 S.E. 850 (1913); Smith v. Central of 
Ga. Ry., 22 Ga. App. 572, 96 S.E. 570 (1918); 
Poultryland, Inc. v. Anderson, 200 Ga. 549, 
37 S.E.2d 785 (1946); Martin v. Medlin, 83 
Ga. App. 589, 64 S.E.2d 73 (1951); Shaheen 
v. G & G Corp., 230 Ga. 646, 198 S.E.2d 853 
(1973). 

Notice of Existence of Nuisance 

Notice of existence or request for abate- 
ment must be given alienee. — Under this 
section notice to an alienee that he will be 
held responsible for any damages subse- 
quently caused by the nuisance will suffice in 
lieu of a specific request to abate. Central 
R.R. v. English, 73 Ga. 366 (1884); Central of 
Ga. Ry. v. Americus Constr. Co., 133 Ga. 392, 
65 S.E. 855 (1909). 

It is error to charge that a lessee need not 
receive notice where the evidence conflicted 
on the question of whether he had increased 
the nuisance. Seaboard & R.R.R. v. Ambrose. 
122 Ga. 47, 49 S.E. 815 (1905). 

Damages prior to such notice cannot be 
recovered. City Council v. Marks, 124 Ga. 
365, 52 S.E. 539 (1905); Roberts v. Georgia 
Ry. & Power Co., 151 Ga. 241, 106 S.E. 258 
(1921). 

Before a cause of action for maintenance 
of a nuisance arises against alienee of nui- 
sance, there must be a notice of the exist- 
ence of the nuisance, or a request to abate it, 



given to alienee; mere passive knowledge of 
the existence of the nuisance by alienee is 
not sufficient. Georgia Power Co. v. Fincher, 
46 Ga. App. 524, 168 S.E. 109 (1933). 

While an action will lie without notice 
against one who erects and maintains a 
nuisance, notice is a prerequisite against one 
who merely acquires property on which 
there is an existing nuisance, passively per- 
mits its continuance, and adds nothing 
thereto. Georgia Power Co. v. Moore, 47 Ga. 
App. 411, 170 S.E. 520 (1933). 

The maintenance of the nuisance after 
notice is continuance of the nuisance, and 
the alienee of the property causing the nui- 
sance is responsible for that continuance, if 
there is a request for abatement before 
action is filed. Hoffman v. Atlanta Gas Light 
Co., 206 Ga. App. 727, 426 S.E.2d 387 
(1992). 

Notice of abatement where alienee in- 
creases nuisance. — A grantee or alienee of 
property causing a nuisance is not liable for 
damages caused by its continued mainte- 
nance and accruing prior to a notice or 
request to abate; but it is also the rule that 
where the alienee of property on which is 
situated a nuisance does anything to in- 
crease the nuisance, he may be sued without 
notice to abate. Savannah Elec. & Power Co. 
v. Horton, 44 Ga. App. 578, 162 S.E. 299 
(1932). 

While notice is required to one who 
merely purchases land and fails to remove a 
nuisance created by another, yet it is not 
necessary to an alienee, who knowingly does 
some additional act to actively maintain and 
use a nuisance originally created by another, 
or does something to increase the existing 
nuisance or its injurious effects, and thus 
creates in effect a fresh nuisance. Georgia 
Power Co. v. Moore, 47 Ga. App. 411, 170 
S.E. 520 (1933). 

No duty to move away. — Where a person 
rents land which is adjacent to a nuisance, 
he is under no duty to move away. Central 
R.R. v. English, 73 Ga. 366 (1884). 

Jury instruction on imputed notice of nui- 
sance. — Upon the trial of a suit against 



25 



41-1-6 



NUISANCES 



41-1-6 



Notice of Existence of Nuisance (Cont'd) 

alienee of a nuisance to recover damages for 
maintenance of the nuisance, which arises 
out of the construction of the dam which 
alienee's predecessor in tide had erected, 
and which alienee had not altered, it was 
error for court to instruct jury that, where 
the agent of the defendant in charge of the 
dam as superintendent is the same person 
who had held the same position with defen- 
dant's predecessor in title, and who, as su- 
perintendent for latter, had notice of the 
existence of the nuisance, knowledge by him 
of this fact constituted notice to defendant 
of the existence of the nuisance. Georgia 
Power Co. v. Fincher, 46 Ga. App. 524, 168 
S.E. 109 (1933). 

Property purchased with knowledge of 
nuisance. — Purchaser of property upon 
which there is an existing nuisance is not 
barred from his right to recover damages 
resulting from a continuation of the nui- 
sance by the defendant, after requesting 
defendant to abate the nuisance, by the fact 



that he purchased the property with knowl- 
edge of the nuisance. Roughton v. Thiele 
Kaolin Co., 209 Ga. 577, 74 S.E.2d 844 
(1953). 

The owner or lessee of land although 
taking with knowledge of a nuisance, has a 
right to presume that, being illegal, it will be 
abated; and, if it is not, he may sue for 
damages resulting to him therefrom. Ingram 
v. City of Acworth, 90 Ga. App. 719, 84 S.E.2d 
99 (1954). 

Measure of damages. Mayor of Gainesville 
v. Robertson, 25 Ga. App. 632, 103 S.E. 853 
(1920). 

Notice to the alienee cannot be set up by 
an amendment. Blackstock v. Southern Ry., 
120 Ga. 414, 47 S.E. 902 (1904). 

Variance between allegations and proof. 
— Allegations that damage was caused by 
the erection of a nuisance by the defendant 
are not supported by evidence that it was 
erected by the predecessor in title. Southern 
Ry. v. Cook, 106 Ga. 450, 32 S.E. 585 (1899); 
DeLoach v. Georgia C. & P.R.R., 137 Ga. 633, 
73 S.E. 1072 (1912). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 58 Am. Jur. 2d, Nuisances, 
§§ 125-129, 258. 

C.J.S. — 66 C.J.S., Nuisances, §§ 86, 88. 

ALR. — Liability for property damage 
caused by vibrations, or the like, without 
blasting or explosion, 79 ALR2d 966. 

Landowner's right to relief against pollu- 



tion of his water supply by industrial or 
commercial waste, 39 ALR3d 910. 

"Coming to nuisance" as a defense or 
estoppel, 42 ALR3d 344. 

Residential swimming pool as nuisance, 49 
ALR3d 545. 

Computer as nuisance, 45 ALR4th 1212. 



41-1-6. Erection or continuance of nuisance after notice to abate. 

Any person who shall erect or continue after notice to abate a nuisance 
which tends to annoy the community, injure the health of the citizens in 
general, or corrupt the public morals shall be guilty of a misdemeanor. 
(Laws 1833, Cobb's 1851 Digest, p. 817; Code 1863, § 4437; Code 1868, 
§ 4478; Code 1873, § 4562; Code 1882, § 4562; Penal Code 1895, § 641; 
Penal Code 1910, § 681; Code 1933, § 72-9901.) 

Cross references. — Offenses against pub- 
lic health and morals generally, Ch. 12, T. 16. 

JUDICIAL DECISIONS 



City criminal court empowered to abate 
nuisances. — The fact that the General 
Assembly made the continuation of a nui- 



sance after notice to abate a misdemeanor, 
does not preclude the criminal court of 
Cordele's power to abate nuisances pursuant 



26 



41-1-7 GENERAL PROVISIONS 41-1-7 

to the legislative authorization in § 41-2-5, Cordele, 254 Ga. 346, 329S.E.2d 134 (1985). 
and its power to enforce its judgments by Cited in Vason v. City of Augusta, 38 Ga. 

contempt pursuant to the legislative autho- 542 (1868); City of Adanta v. Pazol, 95 Ga. 

rization in the city charter. Home v. City of App. 598, 98 S.E.2d 216 (1957). 

OPINIONS OF THE ATTORNEY GENERAL 

Substandard buildings in town or city. — If property owner fails to abate the nuisance, 

substandard buildings in a town or city are he may be bound over to a court having 

alleged to be a nuisance, this may be deter- jurisdiction of misdemeanors; the munici- 

mined in accordance with § 41-2-5; this de- pality cannot itself demolish the offending 

termination must be made subject to the buildings unless it condemns the property 

due process provisions of state and federal and compensates the owner. 1970 Op. Att'y 

Constitutions; if a nuisance is found to exist, Gen. No. U70-229. 
the court can order its abatement; if the 

RESEARCH REFERENCES 

Am. Jur. 2d. — 58 Am. Jur. 2d, Nuisances, Gasoline or other fuel storage tanks as 

§§ 233-234, 346-349. nuisance, 50 ALR3d 209. 

C.J.S. — 66 C.J.S., Nuisances, §§ 160, 162. Exhibition of obscene motion pictures as 

ALR. — Statutes, ordinances, or regula- nuisance, 50 ALR3d 969. 
tions relating to private residential swim- 
ming pools, 92 ALR2d 1283. 

41-1-7. Treatment of agricultural facilities and operations as nuisances. 

(a) It is the declared policy of the state to conserve, protect, and 
encourage the development and improvement of its agricultural land and 
facilities for the production of food and other agricultural products. When 
nonagricultural land uses extend into agricultural areas, agricultural oper- 
ations often become the subject of nuisance actions. As a result, agricultural 
facilities are sometimes forced to cease operations. Many others are 
discouraged from making investments in farm improvements or adopting 
new technology or methods. It is the purpose of this Code section to reduce 
losses of the state's agricultural resources by limiting the circumstances 
under which agricultural facilities and operations may be deemed to be a 
nuisance. 

(b) As used in this Code section, the term: 

(1) "Agricultural facility" includes, but is not limited to, any land, 
building, structure, pond, impoundment, appurtenance, machinery, or 
equipment which is used for the commercial production or processing of 
crops, livestock, animals, poultry, honeybees, honeybee products, live- 
stock products, poultry products, or products which are used in commer- 
cial aquaculture. Such term shall also include any farm labor camp or 
facilities for migrant farm workers. 

(2) "Agricultural operation" means: 

(A) The plowing, tilling, or preparation of soil at an agricultural 
facility; 

27 



41-1-7 NUISANCES 41-1-7 

(B) The planting, growing, fertilizing, or harvesting of crops; 

(C) The application of pesticides, herbicides, or other chemicals, 
compounds, or substances to crops, weeds, or soil in connection with 
the production of crops, livestock, animals, or poultry; 

(D) The breeding, hatching, raising, producing, feeding, keeping, 
slaughtering, or processing of livestock, hogs, equines, chickens, 
turkeys, poultry or other fowl normally raised for food, mules, cattle, 
sheep, goats, dogs, rabbits, or similar farm animals for commercial 
purposes; 

(E) The production and keeping of honeybees, the production of 
honeybee products, and honeybee processing facilities; 

(F) The production, processing, or packaging of eggs or egg 
products; 

(G) The manufacturing of feed for poultry or livestock; 
(H) The rotation of crops; 

(I) Commercial aquaculture; 

(J) The application of existing, changed, or new technology, prac- 
tices, processes, or procedures to any agricultural operation; and 

(K) The operation of any roadside market. 

(c) No agricultural facility or any agricultural operation at an agricul- 
tural facility shall be or shall become a nuisance, either public or private, as 
a result of changed conditions in or around the locality of such agricultural 
facility if the agricultural facility has been in operation for one year or more. 
The provisions of this subsection shall not apply when a nuisance results 
from the negligent, improper, or illegal operation of any agricultural 
facility. 

(d) For purposes of this Code section, the established date of operation 
is the date on which an agricultural operation commenced operation. If the 
physical facilities of the agricultural operation are subsequendy expanded 
or new technology adopted, the established date of operation for each 
change is not a separately and independently established date of operation 
and the commencement of the expanded operation does not divest the 
agricultural operation of a previously established date of operation. (Ga. L. 
1980, p. 1253, §§ 1, 2; Ga. L. 1988, p. 1775, § 1; Ga. L. 1989, p. 317, § 1.) 

Cross references. — Legislative declara- Code Section 28-9-5, in 1988, the correct 

tion of intent to encourage development spelling of "technology" was substituted in 

and operation of new family farms through the second sentence of subsection (d). 

establishment of Georgia Residential Fi- Law reviews. — For article, "Agricultural 

nance Authority, § 8-3-171. Nuisances and the Georgia 'Right to Farm' 

Code Commission notes. — Pursuant to Law," see 23 Ga. St. B.J. 19 (1986). For 

28 



41-1-8 GENERAL PROVISIONS 41-1-8 

article, "Agricultural Nuisances Under the 
Amended Georgia 'Right-toFarm' Law," see 
25 Ga. St. BJ. 36 (1988). 

JUDICIAL DECISIONS 

"Changed conditions in the locality" con- action is being brought as a result of 

strued. — Language in subsection (c) changed conditions in locality of facility; and 

"changed conditions in ... the locality" of (3) whether facility has been in operation 

the facility refers solely to extension of for one year or more prior to changed 

nonagricultural land uses, residential or oth- conditions in surrounding locality. Herrin v. 

erwise, into existing agricultural areas. Opatut, 248 Ga. 140, 281 S.E.2d 575 (1981). 

Herrin v. Opatut, 248 Ga. 140, 281 S.E.2d Nuisances not arising from urban sprawl 

575 (1981). are not coverec L — That which may consti- 

Changed conditions in locality. — Where tute a nuisance regardless of urban sprawl, 

plaintiffs were making nonagricultural uses such as polluting a stream , is neV er protected 

of their lands prior to establishment of de- b this section since such actiyi does nQt 

fendants farm, if defendants facility is a become a nuisance as a resuk Q 7 f ch d 

nuisance, it is not so as a result of changed conditions in surrounding i ocality . H errin v. 

conditions in locality, within meaning of this Q 24g Ga gl § £ d ' ? 

secuon. Herrin v. Opatut, 248 Ga. 140, 281 \. . . ... . . , - 

SE2d 575 (1981) Abatement of facilities m operation for 

Determination of whether facility is insu- lon * *****- "7 This section do c es not P r<> 

lated from abatement. - In determining *** that a facillt y in °P erat * on for ° ne year 

whether agricultural facility is insulated un- ^ an never be **>**<* as nuisance. Herrin v. 

der this section from abatement as a nui- °P atut < 248 Ga 140 > 281 SE2d 575 < 1981 )- 
sance, the court must inquire (1) whether C,ted in Roberts v. Southern Wood Pied- 

operation is an agricultural facility within mont Co " 173 Ga - A PP- 757 > 328 S.E.2d 391 

meaning of section; (2) whether a nuisance (1985). 

OPINIONS OF THE ATTORNEY GENERAL 

Egg farm located in nonagricultural, resi- tion from nuisance suits offered by this 
dential area would not be entided to protec- section. 1980 Op. Att'y Gen. No. U80-51. 

RESEARCH REFERENCES 

Am. Jut. 2d. — 58 Am. Jur. 2d, Nuisances, C.J.S. — 66 C.J.S., Nuisances, §§ 32 to 34, 
§§ 190, 191, 198, 200, 203, 209. 44, 51, 56, 57, 69. 

41-1-8. Treatment of publicly owned cultural facilities as nuisances. 

(a) It is declared the public policy of this state to conserve, protect, and 
encourage the development of publicly owned cultural facilities. In order to 
encourage the establishment and maintenance of publicly owned cultural 
facilities, it is the purpose of this Code section to limit the circumstances 
under which a publicly owned cultural facility may be deemed to be a 
nuisance. 

(b) Neither a publicly owned cultural facility nor a facility operated on 
lease from a publicly owned cultural facility nor any of the appurtenances 
thereof nor die operation thereof shall be or become a nuisance, either 
public or private, solely as a result of changed conditions in or around the 

29 



41-1-9 NUISANCES 41-1-9 

locality of such cultural facility if such cultural facility has been in operation 
for one year or more. (Code 1981, § 41-1-8, enacted by Ga. L. 1987, p. 999, 
§ 1; Ga. L. 1994, p. 97, § 41.) 

41-1-9. Sport shooting ranges. 

(a) As used in this Code section, the term: 

(1) "Person" means an individual, proprietorship, partnership, cor- 
poration, or unincorporated association. 

(2) "Sport shooting range" or "range" means an area designated and 
operated by a person for the sport shooting of firearms and not available 
for such use by the general public without payment of a fee, membership 
contribution, or dues or by invitation of an authorized person, or any area 
so designated and operated by a unit of government, regardless of the 
terms of admission thereto. 

(3) "Unit of government" means any of the departments, agencies, 
authorities, or political subdivisions of the state, cities, municipal corpo- 
rations, townships, or villages and any of their respective departments, 
agencies, or authorities. 

(b) No sport shooting range shall be or shall become a nuisance, either 
public or private, solely as a result of changed conditions in or around the 
locality of such range if the range has been in operation for one year since 
the date on which it commenced operation as a sport shooting range. 
Subsequent physical expansion of the range or expansion of the types of 
firearms in use at the range shall not establish a new date of commence- 
ment of operations for purposes of this Code section. 

(c) No sport shooting range or unit of government or person owning, 
operating, or using a sport shooting range for the sport shooting of firearms 
shall be subject to any action for civil or criminal liability, damages, 
abatement, or injunctive relief resulting from or relating to noise generated 
by the operation of the range if the range remains in compliance with noise 
control or nuisance abatement rules, regulations, statutes, or ordinances 
applicable to the range on the date on which it commenced operation. 

(d) No rules, regulations, statutes, or ordinances relating to noise 
control, noise pollution, or noise abatement adopted or enacted by a unit 
of government shall be applied retroactively to prohibit conduct at a sport 
shooting range, which conduct was lawful and being engaged in prior to the 
adoption or enactment of such rules, regulations, statutes, or ordinances. 
(Code 1981, § 41-1-9, enacted by Ga. L. 1997, p. 796, § 1.) 

Effective date. — This Code section be- Editor's notes. — Ga. L. 1997, p. 796, § 2, 
came effective July 1, 1997. not codified by the General Assembly, makes 

30 



414-9 GENERAL PROVISIONS 41-1-9 

this Code section applicable to conduct oc- ply to or affect conduct occurring prior to 
curring on or after July 1, 1997, and July 1, 1997. 
providesthat this Code section shall not ap- 



31 



NUISANCES 

CHAPTER 2 
ABATEMENT OF NUISANCES GENERALLY 



Sec. Sec. 

41-2-1 . Authorization and procedure for 
abatement of nuisances gener- 
ally. 

41-2-2. Filing of petition to abate public 

nuisance. 41-2-11. 

41-2-3. Filing of petition to abate private 
nuisance. 

41-2-4. Issuance of injunction where nui- 41-2-12. 
sance about to be erected or 
commenced likely to result in 
irreparable damage. 

41-2-5. Authorization and procedure for 41-2-13. 
abatement of nuisances in cities 
and unincorporated areas of 
counties. 41-2-14. 

41-2-6. Notice of meeting to determine 
question of abatement [Re- 
pealed]. 41-2-15. 

41-2-7. Power of counties and munici- 
palities to repair, close, or demol- 
ish unfit buildings or structures; 
health hazards on private prop- 41-2-16. 
erty; properties affected. 

41-2-8. Definitions for use in Code Sec- 
tions 41-2-7 through 41-2-17. 

41-2-9. County or municipal ordinances 
relating to unfit buildings or 
structures. 41-2-17. 

41-2-10. Determination by public officer 
that dwelling, building, or struc- 



ture is unfit or vacant, dilapi- 
dated, and being used in connec- 
tion with the commission of drug 
crimes. 

Powers of public officers in re- 
gard to unfit buildings or struc- 
tures. 

Service of complaints or orders 
upon parties in interest and own- 
ers of unfit buildings or struc- 
tures. 

Injunctions against order to re- 
pair, close, or demolish unfit 
buildings or structures. 
Taking of unfit buildings or 
structures by eminent domain; 
police power. 

Authority to use revenues, 
grants, and donations to repair, 
close, or demolish unfit build- 
ings or structures. 
Construction of Code Sections 
41-2-7 through 41-2-17 with 
county or municipal local en- 
abling Act, charter, and other 
laws, ordinances, and regula- 
tions. 

Prior ordinances relating to re- 
pair, closing, or demolition of 
unfit buildings or structures. 



Cross references. — Abatement of nui- 
sances relating to manufacture, sale, etc., of 
distilled spirits in dry counties and munici- 
palities, § 3-10-8. Institution of action for 



injunction, mandamus, etc., to prevent, cor- 
rect, or abate violation or threatened viola- 
tion of county building, electrical, etc., 
codes, § 36-13-10. 



JUDICIAL DECISIONS 



This chapter furnishes a summary remedy 
for the abatement of nuisances, public or 
private, and such remedy should be resorted 
to unless the facts make it inadequate. 
Powell v. Foster, 59 Ga. 790 (1877); 
Broomhead v. Grant, 83 Ga. 451, 10 S.E. 116 
(1889); Hendricks v. Jackson, 143 Ga. 106, 
84 S.E. 440 (1915); Simmons v. Lindsay, 144 
Ga. 845, 88 S.E. 199 (1916). 



The procedure provided for in this chap- 
ter is the proper remedy where the sole 
relief sought by the plaintiff is the removal of 
obstructions in a public alley or street placed 
there by the defendant. Barnes v. Cheek, 84 
Ga. App. 653, 67 S.E.2d 145 (1951). 

Necessity of actual existence of nuisance. 
— This chapter was not intended to afford a 
remedy against that which is not an actually 



32 



41-2-1 



ABATEMENT OF NUISANCES GENERALLY 



41-2-1 



existing nuisance, as distinguished from that 
which may or probably will become such. 
The language of this section seems to admit 
of no other construction. Fairview Cem. Co. 
v. Wood, 36 Ga. App. 709, 138 S.E. 88 (1927). 
Cited in Haney v. Sheppard, 207 Ga. 158, 



60 S.E.2d 453 (1950); Atkinson v. Drake, 212 
Ga. 558, 93 S.E.2d 702 (1956); Speight v. 
Slaton, 415 U.S. 333, 94 S. Ct. 1098, 39 L. Ed. 
2d 367 (1974); 660 Lindbergh, Inc. v. City of 
Atlanta, 492 F. Supp. 511 (N.D. Ga. 1980). 



RESEARCH REFERENCES 

ALR. — When statute of limitations be- 
gins to run as to cause of action for nuisance 
based on air pollution, 19 ALR4th 456. 

41-2-1. Authorization and procedure for abatement of nuisances generally. 

Upon filing of a petition as provided in Code Section 41-2-2, any nuisance 
which tends to the immediate annoyance of the public in general, is 
manifestly injurious to the public health or safety, or tends greatly to 
corrupt the manners and morals of the public may be abated by order of a 
judge of the superior court of the county in which venue is proper. (Laws 
1833, Cobb's 1851 Digest, p. 817; Code 1863, § 3995; Code 1868, § 4023; 
Code 1873, § 4094; Code 1882, § 4094; Civil Code 1895, § 4760; Civil Code 
1910, § 5329; Code 1933, § 72-201; Ga. L. 1980, p. 620, § 1; Ga. L. 1981, p. 
867, § 1.) 

Cross references. — Abatement of hazard 
resulting from abandoned well or hole, 
§ 44-1-14. 



JUDICIAL DECISIONS 



Analysis 

General Consideration 
Sufficiency of Allegations 






General Consideration 

Constitutionality. — The statutory defini- 
tion of a nuisance is not vague and indefinite 
and therefore unconstitutional. Atlanta Pro- 
cessing Co. v. Brown, 227 Ga. 203, 179 S.E.2d 
752 (1971). 

The section defines an indictable nui- 
sance, and was evidently intended not to 
authorize the abatement of an act which was 
not indictable, but to authorize the abate- 
ment of indictable nuisances of peculiar 
virulence, without waiting for an indictment. 
Vason v. South Carolina R.R., 42 Ga. 631 
(1871). 

Section applicable to public and private 
nuisance. — While this section, in terms, 
provides only for the abatement of a public 



nuisance, in the manner therein specified, it 
has been several times held that a private 
nuisance may be abated under its operation 
provided the application is made by the 
party injured. See Ruff v. Phillips, 50 Ga. 130 
(1873);* Salter v. Taylor, 55 Ga. 310 (1875); 
Hart v. Taylor, 61 Ga. 156 (1878); Holmes v. 
Jones, 80 Ga. 659, 7 S.E. 168 (1888); Savan- 
nah, F. 8c W. Ry. v. Gill, 118 Ga. 737, 45 S.E. 
623 (1903). 

Equitable relief. — Where the nuisance is 
continuing in character, the remedy under 
this section is inadequate, and equity will 
take jurisdiction and grant relief. Hunnicutt 
v. Eaton, 184 Ga. 485, 191 S.E. 919 (1937). 

A nuisance may be abated in equity if the 
hurt or damage is irreparable or continuing. 



33 



41-2-1 



NUISANCES 



41-2-1 



General Consideration (Cont'd) 

Isley v. Little, 217 Ga. 586, 124 S.E.2d 80 
(1962), later appeal, 219 Ga. 23, 131 S.E.2d 
623 (1963). 

Operation of lawful business as a nui- 
sance. — While mere apprehension of in- 
jury and damage is insufficient, where it is 
made to appear with reasonable certainty 
that irreparable harm and damage will occur 
from the operation of an otherwise lawful 
business amounting to a continuing nui- 
sance, equity will restrain the construction, 
maintenance or operation of such lawful 
business. Isley v. Little, 217 Ga. 586, 124 
S.E.2d 80 (1962), later appeal, 219 Ga. 23, 
131 S.E.2d 623 (1963). 

Cited in South Carolina R.R. v. Ellis, 40 
Ga. 87 (1869); Wetter v. Campbell, 60 Ga. 
266 (1878); Roberts v. Harrison, 101 Ga. 
773, 28 S.E. 995, 65 Am. St. R. 342 (1897); 
Western & A.R.R. v. City of Atlanta, 113 Ga. 
537, 38 S.E. 996, 54 L.R.A. 294 (1901); Cole 
v.Jones, 8 Ga. App. 737, 70 S.E. 96 (1911); 
Adair v. Spellman Sem., 13 Ga. App. 600, 79 
S.E. 589 (1913); Giles v. Rawlings, 148 Ga. 
575, 97 S.E. 521 (1918); Jones v. City of 
Atlanta, 40 Ga. App. 300, 149 S.E. 305 
(1929); De Long v. Kent, 85 Ga. App. 360, 69 
S.E.2d 649 (1952); Hagins v. Howell, 219 Ga. 
276, 133 S.E.2d 8 (1963); Sizemore v. Coker, 
220 Ga. 773, 141 S.E.2d 891 (1965). 

Sufficiency of Allegations 

No presumption of damages. — Nuisance 
being an indirect tort, there is no presump- 
tion of damages from its maintenance; and 
the plaintiff, in order to recover must show 
the fact of the nuisance and consequent 
damages. Crane v. Mays, 70 Ga. App. 66, 27 
S.E.2d347 (1943). 



Petition alleging that the plaintiff pur- 
chased a described tract of land, and at the 
same time acquired an easement adjacent 
thereto over a lane as a means of ingress and 
egress from the public road to his farm, that 
he had used this land without interruption 
since the date it was acquired until the 
defendant obstructed the same by placing a 
"cattle gap" across it, that such obstruction 
had interfered with the plaintiff's movement 
of cattle along said lane to a pasture, thereby 
causing the plaintiff much inconvenience, 
trouble, and injury to his cattle, and thereby 
depriving his family of necessary milk and 
food, stated a cause of action for injunctive 
relief. Ozbolt v. Miller, 206 Ga. 558, 57 S.E.2d 
601 (1950). 

Character of proceeding under this chap- 
ter was established by the plaintiff's petition 
and its contents, and this could not be 
changed into an action to try title to land by 
the defense sought to be interposed by the 
defendant. Barnes v. Cheek, 84 Ga. App. 
653, 67 S.E.2d 145 (1951). 

While petitioners were not entitled to all 
the relief prayed for, or to an injunction 
against the operation of the defendant's 
service station business when conducted in a 
normal manner accompanied by no more 
noises than were reasonably necessary, yet 
they would be entitled to injunctive relief 
against unusual and unnecessary noises, pro- 
vided the proof showed that the operation of 
the business was attended with such unusual 
and unnecessary noises, as distinguished 
from those disturbances and noises which 
were normal and of the character usually 
attendant upon the operation of the busi- 
ness of operating a filling station and garage 
for repairs. Wilson v. Evans Hotel Co., 188 
Ga. 498, 4S.E.2d 155 (1939). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 58 Am. Jur. 2d, Nuisances, 
§§ 50-65. 

C.J.S. — 66 C.J.S., Nuisances, §§ 102, 109, 
110. 

ALR. — Proximate cause as determining 
landlord's liability, where injury results to a 
third person from a nuisance that becomes 
such only upon tenant's using the premises, 
4 ALR 740. 



Fire escape as an attractive nuisance, 9 
ALR 271. 

Necessity of knowledge by owner of real 
estate of a nuisance maintained thereon by 
another to subject him to the operation of a 
statute providing for the abatement of nui- 
sances, or prescribing a pecuniary penalty 
therefor, 12 ALR 431; 121 ALR 642. 

Liability of purchaser of premises for nui- 



34 



41-2-2 



ABATEMENT OF NUISANCES GENERALLY 



41-2-2 



sance thereon created by predecessor, 14 
ALR 1094. 

Tannery or curing of hides as a nuisance, 
or subject of municipal regulation, 32 ALR 
1358. 

Injunction against games on neighboring 
property, 62 ALR 782; 32 ALR3d 1127. 

Decree abating nuisance as affecting 
owner not served with process, 63 ALR 698. 

Dogs as nuisance, 79 ALR 1060. 

Aeroplanes and aeronautics, 99 ALR 173. 

Use of property for production of war 
goods as affecting question of nuisance, and 
injunction to abate same, 145 ALR 611. 

Validity of provision of statute or ordi- 
nance that requires vacation of premises 
which do not comply with building or sani- 
tary regulations, upon notice to that effect, 
without judicial proceeding, 153 ALR 849. 

When statute of limitation commences to 
run against damage from overflow of land 
caused by artificial construction or obstruc- 
tion, 5 ALR2d 302. 

Stockyard as a nuisance, 18 ALR2d 1033. 

Practice of exacting usury as a nuisance or 
ground for injunction, 83 ALR2d 848. 

Statutes, ordinances, or regulations relat- 
ing to private residential swimming pools, 92 
ALR2d 1283. 

Saloons or taverns as nuisance, 5 ALR3d 
989. 



Modern status of rules as to balance of 
convenience or social utility as affecting re- 
lief from nuisance, 40 ALR3d 601. 

Validity and construction of statute or 
ordinance providing for repair or destruc- 
tion of residential building by public author- 
ities at owner's expense, 43 ALR3d 916. 

Gasoline or other fuel storage tanks as 
nuisance, 50 ALR3d 209. 

Exhibition of obscene motion pictures as 
nuisance, 50 ALR3d 969. 

Nuisance: right of one compelled to dis- 
continue business or activity constituting 
nuisance to indemnity from successful plain- 
tiff, 53 ALR3d 873. 

Existence of, and relief from, nuisance 
created by operation of air conditioning or 
ventilating equipment, 79 ALR3d 320. 

Bells, carillons, and the like, as nuisance, 
95 ALR3d 1268. 

Encroachment of trees, shrubbery, or 
other vegetation across boundary line, 65 
ALR4th 603. 

Nuisance as entitling owner or occupant 
of real estate to recover damages for per- 
sonal inconvenience, discomfort, annoy- 
ance, anguish, or sickness, distinct from, or 
in addition to, damages for depreciation in 
value of property or its use, 25 ALR5th 568. 



41-2-2. Filing of petition to abate public nuisance. 

Private citizens may not generally interfere to have a public nuisance 
abated. A petition must be filed by the district attorney on behalf of the 
public. However, a public nuisance may be abated upon filing of a petition 
by any private citizen specially injured. (Orig. Code 1863, § 3999; Code 
1868, § 4027; Code 1873, § 4098; Code 1882, § 4098; Civil Code 1895, 
§§ 4761, 4766; Civil Code 1910, §§ 5330, 5338; Code 1933, § 72-202; Ga. L. 
1980, p. 620, § 2.) 



Law reviews. — For article surveying 
Georgia cases dealing with environment, 
natural resources, and land use from June 
1977 through May 1978, see 30 Mercer L. 
Rev. 75 (1978). 

For note, "Town of Fort Oglethorpe v. 



Phillips: A Clarification of Georgia's Public 
Nuisance Law?," see 5 Ga. St. BJ. 474 
(1969). For note discussing the abatement of 
nonconforming uses as nuisances, see 10 Ga. 
St. BJ. 302 (1973). 



JUDICIAL DECISIONS 



Analysis 



General Consideration 
Authority of District Attorney 
Jurisdiction 



35 



41-2-2 



NUISANCES 



41-2-2 



General Consideration 

Actions by private citizens require special 
injury. — Private citizens cannot generally 
interfere to have a public nuisance 
enjoinedunder this section. Sammons v. 
Sturgis, 145 Ga. 663, 89 S.E. 774 (1916). 

While generally a private citizen may not 
have a public nuisance enjoined, such nui- 
sance may be abated, on the application of a 
citizen specially injured. Harbuck v. 
Richland Box Co., 204 Ga. 352, 49 S.E.2d 
883 (1948). 

Generally a public nuisance gives to any 
individual no right of action for injunction, 
but it must be abated by a process instituted 
in the name of the state. Albany Theater, 
Inc. v. Short, 171 Ga. 57, 154 S.E. 895 (1930). 

The private citizen specially damaged by a 
public nuisance may proceed in his own 
name and behalf to have the same abated 
under this section and § 41-2-3. Savannah, F. 
& W. Ry. v. Gill, 118 Ga. 737, 45 S.E. 623 
(1903); Trust Co. v. Ray, 125 Ga. 485, 54 S.E. 
145 (1906). 

All injury to health is special, and neces- 
sarily limited in its effect to the individual 
affected, and is, in its nature, irreparable. It 
matters not that others within the sphere of 
the operation of the nuisance, whether pub- 
lic or private, may be affected likewise. 
Hunnicutt v. Eaton, 184 Ga. 485, 191 S.E. 
919 (1937). 

Allegations of petition in which petition- 
ers sought equitable relief "as individuals, 
citizens, and taxpayers" from the closing of a 
railroad crossing were insufficient to show 
special damage to petitioners, or any dam- 
age not shared equally by all other "individ- 
uals, citizens, and taxpayers," and the peti- 
tion was therefore insufficient for the grant 
of any relief to the petitioners as individuals, 
citizens, and taxpayers. State Hwy. Dep't v. 
Reed, 211 Ga. 197, 84 S.E.2d 561 (1954). 

If operation of a picture show on the 
Sabbath amounts to a public nuisance, such 
nuisance may be abated in the manner pro- 
vided by law, or it may be enjoined upon an 
information filed by the solicitor general 
(now district attorney), but an injunction 
will not be granted at the instance of a 
private citizen unless he has sustained spe- 
cial injury. American Legion v. Miller, 183 
Ga. 754, 189 S.E. 837 (1937); Crane v. Mays, 
70 Ga. App. 66, 27 S.E.2d 347 (1943). 



Cited in Coast Line R.R. v. Cohen, 50 Ga. 
451 (1873); Ison v. Manley, 76 Ga. 804 
(1886); Western & A.R.R. v. City of Adanta, 
113 Ga. 537, 38 S.E. 996, 54 L.R.A. 294 
(1901); Peginis v. City of Atlanta, 132 Ga. 
302, 63 S.E. 857, 35 L.R.A. (n.s.) 716 (1909); 
Aiken v. Armistead, 186 Ga. 368, 198 S.E. 237 
(1938); Poole v. Arnold, 187 Ga. 734, 2 
S.E.2d 83 (1939); Nichols v. Pirkle, 202 Ga. 
372, 43 S.E.2d 306 (1947); Kilgore v. 
Paschall, 202 Ga. 416, 43 S.E.2d 520 (1947); 
De Long v. Kent, 85 Ga. App. 360, 69 S.E.2d 
649 (1952) ; Malcom v. Webb, 21 1 Ga. 449, 86 
S.E.2d 489 (1955); City of Dublin v. Hobbs, 
218 Ga. 108, 126 S.E.2d 655 (1962); Burgess 
v. Johnson, 223 Ga. 427, 156 S.E.2d 78 
( 1 967) ; Ungar v. Mayor of Savannah, 224 Ga. 
613, 163 S.E.2d 814 (1968); J.D.Jewell, Inc. 
v. State ex rel. Hancock, 227 Ga. 336, 180 
S.E.2d 704 (1971); Sanders v. McAuliffe, 364 
F. Supp. 654 (N.D. Ga. 1973); Brock v. Hall 
County, 239 Ga. 160, 236 S.E.2d 90 (1977); 
Stephens v. Tate, 147 Ga. App. 366, 249 
S.E.2d 92 (1978); Brand v. Wilson, 252 Ga. 
416, 314S.E.2d 192 (1984). 

Authority of District Attorney 

Acting on information of citizens. — A 

lewd house being per se a public nuisance, a 
court of equity has jurisdiction to abate the 
same on a suit brought by the district attor- 
ney on the information of a citizen as a 
relator, without alleging or proving special 
injury to property. Edison v. Ramsey, 146 Ga. 
767, 92 S.E. 513 (1917). 

The district attorney is not authorized to 
act on the information of citizens, except in 
case of a public nuisance. Southeastern Pipe 
Line Co. v. Garrett ex rel. Le Sueur, 192 Ga. 
817, 16S.E.2d 753 (1941). 

In order for a solicitor general (now dis- 
trict attorney) to proceed for the public, on 
information filed with him by citizens, to 
enjoin a nuisance under this section, the 
object which it is sought to enjoin must be a 
public nuisance. Southeastern Pipe Line Co. 
v. Garrett ex rel. Le Sueur, 192 Ga. 817, 16 
S.E.2d753 (1941). 

Complaint must name citizen furnishing 
information. — A court of equity will not 
entertain a bill in the name of one or more 
private citizens to restrain a public nuisance, 
no private injury or threatened injury being 
alleged to such citizens or to their property. 
In such a case, the nuisance being a purely 



36 



41-2-2 



ABATEMENT OF NUISANCES GENERALLY 



41-2-2 



public one, can only be restrained by the 
public, on information filed by a public 
officer, to wit: by the solicitor general (now 
district attorney) for the Circuit. This hold- 
ing is declaratory of the common-law rule 
which is universally adopted and quite uni- 
form. Mayor of Columbus v. Jaques, 30 Ga. 
506 (1860). 

A complaint in equity filed by the district 
attorney under this section to abate a public 
nuisance must name the citizen or citizens 
upon whose information the complaint is 
based. Chancey v. Hancock, 233 Ga. 734, 213 
S.E.2d 633 (1975). 

Authority not repealed by Air Quality Con- 
trol Act. — The authority granted to district 
attorneys under this section to abate public 
nuisances relating to air pollution was not 
repealed to any extent by the former Geor- 
gia Air Quality Control Act. J.D.Jewell, Inc. v. 
Hancock, 226 Ga. 480, 175 S.E.2d 847 
(1970). 

Jurisdiction 
Jurisdiction by court of equity to grant 



injunction. — A court of equity has jurisdic- 
tion and in a proper case will, by injunction, 
restrain a public nuisance. Albany Theater, 
Inc. v. Short, 171 Ga. 57, 154 S.E. 895 (1930). 

A court of equity has jurisdiction, and in a 
proper case may by injunction restrain a 
public nuisance upon information filed by 
the solicitor general (now district attorney). 
Gullatt v. State ex rel. Collins, 169 Ga. 538, 
150 S.E. 825 (1929). 

Equity, generally, will not interfere with 
the administration of the criminal law. The 
state, however, has an interest in the welfare, 
peace, and good order of its citizens and 
communities and has provided in its laws for 
the abatement of nuisances when the public 
generally is injured. Albany Theater, Inc. v. 
Short, 171 Ga. 57, 154 S.E. 895 (1930). 

By clear and necessary implication injunc- 
tion will lie in the name of the state to enjoin 
a public nuisance. Albany Theater, Inc. v. 
Short, 171 Ga. 57, 154 S.E. 895 (1930). 



RESEARCH REFERENCES 



Am. Jut. 2d. — 58 Am. Jur. 2d, Nuisances, 
§§ 254, 259, 260, 267, 268, 431, 433, 435. 

C.J.S. — 43 C.J.S., Injunctions, § 26. 66 
C.J.S., Nuisances, §§ 77-79. 

ALR. — Injunction to prevent establish- 
ment or maintenance of garbage or sewage 
disposal plant, 5 ALR 920; 47 ALR 1154. 

Special injury to property interest as con- 
dition of right to enjoin diversion of dedi- 
cated property, 41 ALR 1410. 

Animal rendering or bone-boiling plant 
or business as nuisance, 17 ALR2d 1269. 

Public dances or dance halls as nuisances, 
44ALR2d 1381. 

Statutes, ordinances, or regulations relat- 
ing to private residential swimming pools, 92 
ALR2d 1283. 

Saloons or taverns as nuisance, 5 ALR3d 
989. 

Water distributor's liability for injuries due 
to condition of service lines, meters, and the 
like, which serve individual consumer, 20 
ALR3d 1363. 



Liability in connection with fire or explo- 
sion of explosives while being stored or 
transported, 35 ALR3d 1177. 

Propriety of injunctive relief against diver- 
sion of water by municipal corporation or 
public utility, 42 ALR3d 426. 

Public swimming pool as nuisance, 49 
ALR3d 652. 

Gasoline or other fuel storage tanks as 
nuisance, 50 ALR3d 209. 

Exhibition of obscene motion pictures as 
nuisance, 50 ALR3d 969. 

Right to maintain action to enjoin public 
nuisance as affected by existence of pollu- 
tion control agency, 60 ALR3d 665. 

Airport operations or flight of aircraft as 
nuisance, 79 ALR3d 253. 

Existence of, and relief from, nuisance 
created by operation of air conditioning or 
ventilating equipment, 79 ALR3d 320. 

Carwash as nuisance, 4 ALR4th 1308. 



37 



41-2-3 NUISANCES 

41-2-3. Filing of petition to abate private nuisance. 



41-2-4 



A private nuisance may be abated upon filing of a petition by the person 
injured. (Orig. Code 1863, § 3999; Code 1868, § 4027; Code 1873, § 4098; 
Code 1882, § 4098; Civil Code 1895, § 4766; Civil Code 1910, § 5338; Code 
1933, § 72-203; Ga. L. 1980, p. 620, § 3.) 

JUDICIAL DECISIONS 

Analysis 

General Consideration 
Statute of Limitations 

General Consideration 

Cited in Lockwood v. Daniel, 193 Ga. 122, 
17 S.E.2d 542 (1941); De Long v. Kent, 85 
Ga. App. 360, 69 S.E.2d 649 (1952); Clark v. 
Baety, 216 Ga. 42, 114 S.E.2d 527 (1960). 

Statute of Limitations 

Statute of limitations not a bar to equita- 
ble relief. — Plaintiff's right to equitable 



relief was not barred by the statute of limi- 
tations on grounds that the nuisance com- 
plained of had existed for a period of more 
than four years prior to the institution of 
litigation, since where there is a continuing 
nuisance, a new cause of action arises daily 
and a court of equity takes jurisdiction in 
such a case to avoid a multiplicity of suits. 
Scott v. Dudley, 214 Ga. 565, 105 S.E.2d 752 
(1958). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 58 Am. Jur. 2d, Nuisances, 
§§ 254, 255, 259, 268, 431-435. 

C.J.S. — 66 C.J.S., Nuisances, § 81. 

ALR. — Ice manufacturing or distributing 
plant as nuisance, 41 ALR 626. 

Injunction against games on neighboring 
property, 62 ALR 782; 32 ALR3d 1127. 

Casting of light on another's premises as 
constituting actionable wrong, 5 ALR2d 705; 
79 ALR3d 253. 

Public dances or dance halls as nuisances, 
44ALR2d 1381. 

Propriety of injunctive relief against diver- 
sion of water by municipal corporation or 



public utility, 42 ALR3d 426. 

Residential swimming pool as nuisance, 49 
ALR3d 545. 

Gasoline or other fuel storage tanks as 
nuisance, 50 ALR3d 209. 

Exhibition of obscene motion pictures as 
nuisance, 50 ALR3d 969. 

Airport operations or flight of aircraft as 
nuisance, 79 ALR3d 253. 

Operation of cement plant as nuisance, 82 
ALR3d 1004. 

Funeral home as private nuisance, 8 
ALR4th 324. 



41-2-4. Issuance of injunction where nuisance about to be erected or 
commenced likely to result in irreparable damage. 

Where the consequence of a nuisance about to be erected or commenced 
will be irreparable damage and such consequence is not merely possible but 
to a reasonable degree certain, an injunction may be issued to restrain the 
nuisance before it is completed. (Orig. Code 1863, § 2944; Code 1868, 
§ 2951; Code 1873, § 3002; Code 1882, § 3002; Civil Code 1895, § 3863; 
Civil Code 1910, § 4459; Code 1933, § 72-204; Ga. L. 1980, p. 620, § 4.) 



38 



41-2-4 



ABATEMENT OF NUISANCES GENERALLY 



41-2-4 



Law reviews. — For note discussing the 
abatement of nonconforming uses as nui- 
sances, see 10 Ga. St. BJ. 302 (1973). 



Analysis 

General Consideration 

Basis of Injunction 

Jurisdiction 

Order of Abatement 



JUDICIAL DECISIONS 



General Consideration 

Injunction will lie in name of state. — By 

clear and necessary implication injunction 
will lie in the name of the state to enjoin a 
public nuisance. Albany Theater. Inc. v. 
Short, 171 Ga. 57, 154 S.E. 895 (1930). 

Generally, a public nuisance gives to any 
individual no right of action for injunction, 
but it must be abated by a process instituted 
in the name of the state. Albany Theater, 
Inc. v. Short, 171 Ga. 57, 154 S.E. 895 (1930). 

Cited in Mygatt v. Goetchins, 20 Ga. 350 
(1856); Sullivan, Cabot & Co. v. Rome R.R., 
28 Ga. 29 (1859); Kirtland v. Mayor of Ma- 
con, 66 Ga. 385 (1881); Wingate v. City of 
Doerun, 177 Ga. 373, 170 S.E. 226 (1933); 
Vaughn v. Burnette, 211 Ga. 206, 84 S.E.2d 
568 (1954). 

Basis of Injunction 

Nuisance must be certain. — It is only 
where it is made to appear with reasonable 
certainty that an instrumentality in the 
course of construction will necessarily con- 
stitute a nuisance that a court of equity will 
exercise the power to restrain. Elder v. City 
of Winder, 201 Ga. 511, 40 S.E.2d 659 
(1946). 

A court of equity will only exercise the 
power to restrain the erection of a building, 
and the maintenance therein, after con- 
struction, of a lawful business, on the ground 
that the operation of such business will 
constitute a nuisance, where it is made to 
appear with reasonable certainty that such 
Operation necessarily constitutes a nuisance, 
the consequences of which will be irrepara- 
ble in damages. Powell v. Garmany, 208 Ga. 
550, 67S.E.2d 781 (1951). 

Where the injury is either irreparable or 
continuing, an injunction will be granted. 
Farley v. Gate City Gas Light Co., 105 Ga. 
323,31 S.E. 193 (1898). 



An injunction will be granted where the 
damages can be ascertained, and all rights 
finally adjudicated in one action. Wheeler v. 
Steele, 50 Ga. 24 (1873); Powell v. Foster, 59 
Ga. 790 (1877). 

A continuing nuisance gives a new cause 
of action for each day of its continued 
maintenance, and in such a case, in order to 
avoid a multiplicity of suits, a court of equity 
will entertain jurisdiction to enjoin the nui- 
sance and also have it abated. Albany The- 
ater, Inc. v. Short, 171 Ga. 57, 154 S.E. 895 
(1930). 

A nuisance may be abated in equity if the 
hurt or damage is irreparable or continuing. 
Isley v. Little, 217 Ga. 586, 124 S.E.2d 80 
(1962), later appeal, 219 Ga. 23, 131 S.E.2d 
623 (1963). 

A nuisance per accidens by reason of 
circumstances and surroundings may be 
abated in equity if the hurt or damage is 
irreparable or continuing. Camp v. 
Warrington, 227 Ga. 674, 182 S.E.2d 419 
(1971). 

Evidence obtained by illegal search or 
seizure. — Where the evidence in support of 
injunctions to abate a public nuisance is 
obtained by illegal searches and seizures, the 
portions of the judgments granting such 
injunctions are void. Carson v. State ex rel. 
Price, 221 Ga. 299, 144 S.E.2d 384 (1965). 

Exclusion of opinion evidence of 
nonexperts. — The method of taking testi- 
mony, when an injunction has been applied 
for, is found in Part 2, Art. 2, Ch. 10, T. 24; 
however, opinion evidence of nonexperts 
will be excluded. Richmond Cotton Oil Co. 
v. Castellaw, 134 Ga. 472, 67 S.E. 1126 
(1910). 

Mere apprehension of injury and damage. 
— Allegation of "mere speculative or con- 
tingent injuries, with nothing to show that 
they will in fact happen," will not support a 



39 



41-2-4 



NUISANCES 



41-2-4 



Basis of Injunction (Cont'd) 

prayer to enjoin a nuisance. Harrison v. 
Brooks, 20 Ga. 537 (1856); Bailey v. Ross, 68 
Ga. 735 (1882); Richmond Cotton Oil Co. v. 
Castellaw, 134 Ga. 472, 67 S.E. 1126 (1910); 
Elder v. City of Winder, 201 Ga. 511, 40 
S.E.2d 659 (1946). 

Allegations of mere speculative or contin- 
gent injuries, with nothing to show that in 
fact they will happen, are insufficient to 
support a prayer for injunctive relief. Powell 
v. Garmany, 208 Ga. 550, 67 S.E.2d 781 
(1951). 

A mere apprehension of injury, based on 
the assumption that a lawful business not 
then in operation will be operated in the 
future in an improper manner, so as to 
become a nuisance, is not sufficient to au- 
thorize equity to enjoin the erection of a 
building wherein such business is to be 
carried on. Powell v. Garmany, 208 Ga. 550, 
67 S.E.2d 781 (1951). 

Mere apprehension of irreparable injury 
from an alleged nuisance, consisting of a 
house in course of construction for a lawful 
business use, is not sufficient to authorize an 
injunction. If it be a nuisance, the conse- 
quences must be to a reasonable degree 
certain. Thrasher v. Citv of Atlanta, 178 Ga. 
514, 173 S.E. 817 (1934). 

The mere anticipation of injury from the 
operation of a lawful business will not autho- 
rize the grant of an injunction. Davis v. 
Miller, 212 Ga. 836, 96 S.E.2d 498 (1957). 

Mere apprehension of irreparable injury 
from an alleged nuisance consisting of a 
house in the course of construction or alter- 
ation for a lawful business is not sufficient to 
authorize an injunction. Roberts v. Rich, 200 
Ga. 497, 37 S.E.2d 401 (1946). 

While mere apprehension of injury and 
damage is insufficient, where it is made to 
appear with reasonable certainty that irrep- 
arable harm and damage will occur from the 
operation of an otherwise lawful business 
amounting to a continuing nuisance, equity 
will restrain the construction, maintenance 
or operation of such lawful business. Isley v. 
Little, 217 Ga. 586, 124 S.E.2d 80 (1962), 
later appeal, 219 Ga. 23, 131 S.E.2d 623 
(1963); Camp v. Warrington, 227 Ga. 674, 
182S.E.2d419 (1971). 

Fears of abutting landowners that land 
condemned for use as a football stadium 



would become a nuisance were too specula- 
tive to permit the enjoining of the condem- 
nation. Herren v. Board of Educ, 219 Ga. 
431, 134S.E.2d6 (1963). 

Where a petition fails to show the facts 
from which it appears with reasonable cer- 
tainty that the operation of the business will 
work hurt, inconvenience and damage, it 
falls just short of alleging a nuisance per 
accidens against which an injunction should 
be granted. Griffith v. Newman, 217 Ga. 533, 
123S.E.2d 723 (1962). 

Granting and dissolution of injunctions. 

— Under this section an interlocutory in- 
junction may be granted against the estab- 
lishment of business, until the final trial of 
the case before the jury. Morrison v. Slappey, 
153 Ga. 724, 113 S.E. 82 (1922). 

Use of restraining order. — And while an 
injunction which is purely mandatory in its 
nature cannot be granted, the court may 
grant an order the essential nature of which 
is to restrain, although in yielding obedience 
to the restrain the defendant may inciden- 
tally be compelled to perform some act. 
Central of Ga. Ry. v. Americus Constr. Co., 
133 Ga. 392, 65 S.E. 855 (1909). 

Injunction granted enjoining escape of 
gases from a city sewer. — See Central of Ga. 
Ry. v. Americus Constr. Co., 133 Ga. 392, 65 
S.E. 855 (1909). 

Unlicensed obstruction of public street. 

— See Savannah, A. & G.R.R. v. Shields, 33 
Ga. 601 (1863). 

Dumping trash on another's land. — See 
Lowe v. Holbrook, 71 Ga. 563 (1883); Butler 
v. Mayor of Thomasville, 74 Ga. 570 (1885). 

Obstruction of an alley. — See Murphey v. 
Harker, 115 Ga. 77, 41 S.E. 585 (1902). 

Diversion of a watercourse. — See Persons 
v. Hill, 33 Ga. 141 (1864). 

Municipal license of cars in its street for 
private use. — See Mayor of Macon v. Harris, 
73 Ga. 428 (1884). 

Construction of a pond. — See De 
Vaughn v. Minor, 77 Ga. 809, 1 S.E. 433 
(1887). 

Maintaining livery stable. — See Coker v. 
Birge, 10 Ga. 336 (1851). But see 
Rounsaville v. Kohlheim, 68 Ga. 668, 45 Am. 
R. 505 (1882). 

Operation of poultry houses. — See May 
v. Brueshaber, 265 Ga. 889, 466 S.E.2d 196 
(1995). 

Grocery business in residential area. — It 
was not error for a trial court to dismiss a 



40 



41-2-5 



ABATEMENT OF NUISANCES GENERALLY 



41-2-5 



petition complaining that a proposed ware- 
house and wholesale grocery business in a 
residential section would constitute a nui- 
sance, causing irreparable damage to the 
plaintiffs, and seeking an injunction to re- 
strain the construction of the proposed 
building, because such a business is not 
necessarily a nuisance per se, even in a 
residential neighborhood, and mere appre- 
hension of irreparable injury is insufficient 
under this section. Roberts v. Rich, 200 Ga. 
497, 37 S.E.2d 401 (1946). 

Effect of abatement of nuisance before 
trial. — Where subsequently to the institu- 
tion of the action, but prior to the trial, the 
defendant has practically abated the nui- 
sance, a refusal to grant an injunction under 
this section is proper. Farley v. Gate City Gas 
Light Co., 105 Ga. 323, 31 S.E. 193 (1898). 

Jurisdiction 

A court of equity has jurisdiction and in a 

proper case will, by injunction, restrain a 
public nuisance. Albany Theater, Inc. v. 
Short, 171 Ga. 57, 154 S.E. 895 (1930). 

Prospective or future damages not recov- 
erable. — Equity courts have the power to 



abate nuisances, but, where the nuisance 
complained of is merely temporary, then 
prospective or future damages, as damages 
for permanent injury, are not recoverable. 
Ward v. Southern Brighton Mills, 45 Ga. 
App. 262, 164 S.E. 214 (1932). 

Equity', generally, will not interfere with 
the administration of the criminal law. The 
state, however, has an interest in the welfare, 
peace, and good order of its citizens and 
communities and has provided in its laws for 
the abatement of nuisances when the public 
generally is injured. Albanv Theater, Inc. v. 
Short, 171 Gal 57, 154 S.E. 895 (1930). 

Order of Abatement 

Sufficiency of order. — An order restrain- 
ing the defendant from permitting any gases 
or vapors to escape from, or be carried 
beyond, the ground owned by the defendant 
company and upon which its plant is lo- 
cated, so as to constitute a nuisance, as 
denned in § 41-1-1 and this section is suffi- 
ciently specific. Morris Fertilizer Co. v. 
Boykin, 149 Ga. 673, 101 S.E. 799 (1920). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 42 Am. Jur. 2d, Injunc- 
tions, §§ 48, 49, 265. 58 Am. Jur. 2d, Nui- 
sances, §§ 329-336, 396. 

C.J.S. — 43 C.J.S., Injunctions, §§ 16, 17, 
20-28. 66 C.J.S., Nuisances, §§ 111-118. 

ALR. — Injunction to prevent establish- 
ment or maintenance of garbage or sewage 
disposal plant, 5 ALR 920; 47 ALR 1154. 

Nuisance resulting from smoke alone as 
subject for injunctive relief, 6 ALR 1575. 



.Right to enjoin threatened or anticipated 
nuisance, 26 ALR 937; 32 ALR 724; 55 ALR 
880. 

Institution for the punishment or rehabil- 
itation of criminals, delinquents, or alcohol- 
ics as enjoinable nuisance, 21 ALR3d 1058. 

Punitive damages in actions based on nui- 
sance, 31 ALR3d 1346. 

Operation of cement plant as nuisance, 82 
ALR3d 1004. 



41-2-5. Authorization and procedure for abatement of nuisances in cities 
and unincorporated areas of counties. 

If the existence of a nuisance is complained of in a county or city of this 
state, the municipal court of the city, if the nuisance complained of is in the 
city, shall have jurisdiction to hear and determine the question of the 
existence of such nuisance and, if found to exist, to order its abatement. If 
the nuisance complained of is located in the unincorporated area of a 
county, the magistrate court of the county, unless otherwise provided by 
local law, shall have such jurisdiction and power to order its abatement. 
(Laws 1833, Cobb's 1851 Digest, p. 817; Code 1863, § 3996; Code 1868, 



41 



41-2-5 



NUISANCES 



41-2-5 



§ 4024; Code 1873, § 4095; Code 1882, § 4095; Ga. L. 1892, p. 64, § 1; 
Civil Code 1895, § 4762; Civil Code 1910, § 5331; Code 1933, § 72-401; Ga. 
L. 1981, p. 1739, § 1; Ga. L. 1987, p. 3, § 41; Ga. L. 1988, p. 1419, § 1.) 



Cross references. — Content of municipal 
or county ordinances relating to repair, clos- 
ing, or demolition of dwellings unfit for 
human habitation, § 36-61-11. 

Law reviews. — For article, "Delegation in 
Georgia Local Government Law," see 7 Ga. 



St. B.J. 9 (1970). For article surveying Geor- 
gia cases dealing with environment, natural 
resources, and land use from June 1977 
through May 1978, see 30 Mercer L. Rev. 75 

(1978). 



JUDICIAL DECISIONS 



Analysis 



General Consideration 

Notice 

Delegation of Power to Abate Nuisances 

Jurisdiction 

Pleading and Practice 



General Consideration 

It is an exercise of judicial power, to 

determine what is by law a nuisance and only 
those things which are by the common or 
statute law declared to be nuisances per se, 
or which in their very nature are such, may 
be summarily suppressed. City of Atlanta v. 
Aycock, 205 Ga. 441, 53 S.E.2d 744 (1949). 

Mere apprehension of injury. — This sec- 
tion does not apply where there is a mere 
apprehension of an irreparable injury. 
Wingate v. City of Doerun, 177 Ga. 373, 170 
S.E. 226 (1933). 

Any nuisance injurious to the public health 
is within the terms of this section. Strong v. 
LaGrange Mills, 112 Ga. 117, 37 S.E. 117 
(1900); Western & A.R.R. v. City' of Atlanta, 
113 Ga. 537, 38 S.E. 996, 54' L.R.A. 294 
(1901); Peginis v. City of Atlanta, 132 Ga. 
302, 63 S.E. 857, 35 L.R.A. (n.s.) 716 (1909); 
Griggs v. City of Macon, 154 Ga. 519, 114 S.E. 
899 (1922). 

Proceedings in name of city upon applica- 
tion of citizen. — If the nuisance is a public 
one merely, and no private individual suf- 
fered special damages therefrom, then the 
proceedings to abate the same should be in 
the name of the city upon the application of 
some citizen. Calhoun ex rel. Chapman v. 
Gulf Oil Corp., 189 Ga. 414, 5 S.E.2d 902 
(1939). 

Cited in Spencer v. Tumlin, 155 Ga. 341, 
116 S.E. 600 (1923); City Council v. Sanders, 
164 Ga. 235, 138 S.E. 234 (1927); Jones v. 



City' of Atlanta, 40 Ga. App. 300, 149 S.E. 305 
(1929); Albany Theater, Inc. v. Short, 171 
Ga. 57, 154 S.E. 895 (1930); OQuinn v. 
Mayor of Homerville, 42 Ga. App. 628, 157 
S.E. 109 (1931); American Legion v. Miller, 
183 Ga. 754, 189 S.E. 837 (1937); Lockwood 
v. Daniel, 193 Ga. 122, 17 S.E.2d 542 (1941); 
Foster v. Mayor of Carrollton, 68 Ga. App. 
796, 24 S.E.2d 143 (1943); De Long v. Kent, 
85 Ga. App. 360, 69 S.E.2d 649 (1952); 
Johnson v. Willingham, 212 Ga. 310, 92 
S.E.2d 1 (1956); Neel v. Clark, 221 Ga. 439, 
145 S.E.2d 235 (1965); Cronic v. State, 222 
Ga. 623, 151 S.E.2d 448 (1966); Shaffer v. 
City of Atlanta, 223 Ga. 249, 154 S.E.2d 241 
(1967); Fulton Counts' v. Woodside, 223 Ga. 
316, 155 S.E.2d 404 (1967); Ford v. 
Crawford, 240 Ga. 612, 241 S.E.2d 829 
(1978); Yield, Inc. v. City of Atlanta, 152 Ga. 
App. 171, 262 S.E.2d 481 (1979); 660 
Lindbergh, Inc. v. City of Adanta, 492 F. 
Supp. 511 (N.D. Ga. 1980). 

Notice 

Building inspector not authorized to sub- 
stitute his judgment. — Under the general 
law of this state, this section, the building 
inspector of the City of Adanta was not 
authorized to substitute his judgment for 
that of the tribunal fixed by law, and serve 
notices on the property owners that their 
property "constitutes a nuisance," or that it 
had been "condemned." City of Adanta v. 
Aycock, 205 Ga. 441, 53 S.E.2d 744 (1949). 



42 



41-2-5 



ABATEMENT OF NUISANCES GENERALLY 



41-2-5 



Reasonable notice of hearing on abate- 
ment. — Reasonable notice to the property 
owner of the time and place of hearing must 
precede any judgment ordering the abate- 
ment (destruction) of private property as a 
nuisance. City of Atlanta v. Aycock, 205 Ga. 
441,53S.E.2d744 (1949). 

Delegation of Power to Abate Nuisances 

Lawful delegation of police power to 
abate nuisances. — A city's agreement to 
cooperate with its local housing authority in 
effecting elimination of unsafe or insanitary 
dwellings with the approval of the United 
States Public Housing Administration does 
not contemplate or provide for an unlawful 
delegation of its police power to abate nui- 
sances to the public housing administration 
but amounts only to an assurance of a 
proper exercise of it by the city to the end 
that it will do what it ought in any event to 
do, namely, eliminate unsafe or unsanitary 
dwellings in the interest of general welfare, 
as it alone can lawfully do. Telford v. City of 
Gainesville, 208 Ga. 56, 65 S.E.2d 246 
(1951). 

Jurisdiction 

Jurisdiction generally. — This section 
gives no power to justices of the peace (now 
magistrates); power is vested in the city 
government alone. South Carolina R.R. v. 
Ells, 40 Ga. 87 (1869). 

The part of the section (formerly) relating 
to jurisdiction in cities of twenty thousand 
inhabitants confers such jurisdiction in the 
police court alone of the city where the 
nuisance exists, except in cases of nuisance 
per se. Western & A.R.R. v. Citv of Atlanta, 
113 Ga. 537, 38 S.E. 996, 54 L.R.A. 294 
(1901); Peginis v. Citv of Atlanta, 132 Ga. 
302, 63 S.E. 857, 35 L.R.A. (n.s.) 716 (1909). 

Filing abatement proceedings with munic- 
ipal authorities. — Proceedings to abate a 
nuisance, public or private, alleged to exist 
within an incorporated municipality', must 
be filed with and determined by the munic- 
ipal authorities, unless there are special cir- 
cumstances, requiring the intervention of 
equity. Waller v. Lanier, 198 Ga. 64, 30 S.E.2d 
925 (1944); Mitchell v. Green, 201 Ga. 256, 
39S.E.2d696 (1946). 

Section provides adequate remedy. — 
This section provides an adequate remedy 



for the abatement of a nuisance, public or 
private, which has been created and which 
exists within the limits of a town or city, and 
that remedy must be resorted to for its 
abatement, unless there are special facts 
which make the remedy inadequate. City of 
East Point v. Henry Chanin Corp., 210 Ga. 
628, 81 S.E.2d 812 (1954). 

To abate a nuisance, public or private, the 
remedy provided in this section should be 
resorted to, unless the special facts make the 
remedy inadequate. Poultryland, Inc. v. 
Anderson, 200 Ga. 549, 37 S.E.2d 785 
(1946). 

Plaintiff must apply to city recorder for 
order abating nuisance. — Where the city 
responsible for an alleged nuisance (former- 
ly) had a population of more than 20,000, 
the plaintiff was by this section required to 
apply to the city's recorder for an order 
abating the nuisance complained of. City of 
East Point v. Henry Chanin Corp., 210 Ga. 
628,81 S.E.2d 812 (1954). 

Review of recorder's decision by certiorari 
in superior court. — Any decision rendered 
by city's recorder under this section had to 
be reviewed by certiorari in the superior 
court. City of East Point v. Henrv Chanin 
Corp., 210 Ga. 628, 81 S.E.2d 812 (1954). 

Writ of prohibition properly denied. — 
Where City of Atlanta brought a proceeding 
in recorder's court to abate a nuisance, the 
penal features of the proceeding being aban- 
doned, and defendant sued out in the supe- 
rior court a petition for the writ of prohibi- 
tion to prevent the recorder from 
proceeding with the case, the writ was prop- 
erly denied, the writ of prohibition is never 
granted where there is any other legal rem- 
edy, and this section provided an adequate 
and complete remedy in the case. Magbee v. 
City of Adanta, 180 Ga. 733, 180 S.E. 485 
(1935). 

Availability of certiorari. — A decision by 
the governing body of a municipality as to 
whether alleged acts constitute a nuisance, 
made after trial in which the parties at 
interest have participated, is a judicial deter- 
mination, from which certiorari will lie. 
Attaway v. Coleman, 213 Ga. 329, 99 S.E.2d 
154 (1957). 

City criminal court empowered to abate 
continuing nuisance. — The fact that the 
General Assembly made the continuation of 
a nuisance after notice to abate a misde- 



43 



41-2-5 



NUISANCES 



41-2-5 



Jurisdiction (Cont'd) 

meanor (§ 41-1-6), does not preclude the 
criminal court of Cordele's power to abate 
nuisances pursuant to the legislative autho- 
rization in this section, and its power to 
enforce its judgments by contempt pursuant 
to the legislative authorization in the city 
charter. Home v. City of Cordele, 254 Ga. 
346, 329 S.E.2d 134 (1985). 

Proceedings not criminal in nature. — A 
proceeding in municipal court to determine 
the question of whether a nuisance exists is 
not criminal or quasi criminal in nature 
since the court cannot fine or imprison the 
defendant in error, and the bond required 
for certiorari is that provided for in § 5-4-5 
for civil proceedings, and a bond under 
§ 5-4-20 will not suffice. City' of Atlanta v. 
Pazol, 95 Ga. App. 598, 98 SX2d 216 (1957). 

Equitable jurisdiction. — Where a munic- 
ipal corporation itself is maintaining a nui- 
sance, and a proper case exists for its abate- 
ment, equity will take jurisdiction, 
notwithstanding the provisions of this sec- 
tion, which prescribe the manner of abate- 
ment when the nuisance complained of shall 
exist in an incorporated town or city'. City' of 
Blue Ridge v. Kiker, 189 Ga. 717, 7 S.E.2d 
237 (1940). 

In situations where there is a continuing 
nuisance, this section does not afford an 
adequate remedy at law and a court of equity 
will entertain jurisdiction to enjoin the nui- 
sance and have it abated. City of Atlanta v. 
Wolcott, 240 Ga. 244, 240 S.E^d 83 (1977). 

Where there is a continuing nuisance, 
which plaintiffs allege will cause sickness, the 
remedy provided under this section does not 
furnish an ample and complete remedy for 
the plaintiffs. Poultrvland, Inc. v. Anderson, 
200 Ga. 549, 37 S.E.2d 785 (1946). 

Although a nuisance exists in a city' under 
the government of a mayor or common 
council, a court of equity' will in a proper 
case take jurisdiction of a suit to enjoin its 
continuance, notwithstanding the provisions 
of this section, when the nuisance is a con- 
tinuing one. State ex rel. Boykin v. Ball Inv. 
Co., 191 Ga. 382, 12 S.E.2d 574 (1940); 
Poultrvland, Inc. v. Anderson, 200 Ga. 549, 
37 S.E^d 785 (1946). 

If alleged conduct constitutes a continu- 
ing nuisance under § 41-1-1, the plaintiff is 
entitled to equitable relief. Poultrvland, Inc. 



v. Anderson, 200 Ga. 549, 37 S.E.2d 785 
(1946). 

Since a continuing nuisance was alleged, 
and since a continuing nuisance may be 
enjoined by a court of equity it was not error 
for the trial court to overrule the plea to the 
jurisdiction, wherein it was asserted that, by 
virtue of this section the mayor and city 
council of Springfield had jurisdiction to 
abate a nuisance in the form of a previously 
erected obstruction to a private way within 
the corporate limits of a city of less than 
20,000 population. Rahn v. Pittman, 216 Ga. 
523, 118S.E.2d85 (1961). 

A petition alleging that a nuisance was a 
continuing one and injuriously affected the 
comfort and health of the petitioners in 
described particulars, and alleging that un- 
less enjoined would cause irreparable dam- 
age to petitioners and result in a multiplicity 
of suits, was not subject to the ground of 
demurrer that it showed on its face that the 
petitioners had an adequate remedy at law. 
Poultrvland, Inc. v. Anderson, 200 Ga. 549, 
37S.E!2d 785 (1946). 

Equity will take jurisdiction when the ma- 
jority of council are disqualified. Hill v. 
McBurney Oil & Fertilizer Co., 112 Ga. 788, 
38 S.E. 42, 52 L.R.A. 398 (1901). 

No conversion to equitable proceeding by 
use of evidentiary standard. — Where a 
party' elects to proceed under this section, it 
is an action at law and using the evidentiary 
standard contained in § 41-3-1 does not 
convert the proceeding into an equitable 
one. Yield, Inc. v. City of Atlanta, 145 Ga. 
App. 172, 244 S.E.2d 32, cert, dismissed, 241 
Ga. 593, 247 S.E.2d 764 (1978). 

Pleading and Practice 

It is an action at law where a party elects to 
proceed under this section. Yield, Inc. v. City 
of Atlanta, 239 Ga. 578, 238 S.E.2d 351 
(1977). 

Certiorari and not prohibition is the rem- 
edy by which officers should be forced to 
follow this section. Mayor of Montezuma v. 
Minor, 70 Ga. 191 (1883). 

Failure to include the municipality as a 
party is not ground for dismissal. See Trust 
Co. v. Ray, 125 Ga. 485, 54 S.E. 145 (1906). 

This section does not confer authority to 
impose a fine. Healev v. City of Atlanta, 125 
Ga. 736, 54 S.E. 749 (1906). 



44 



41-2-6 



ABATEMENT OF NUISANCES GENERALLY 



41-2-7 



OPINIONS OF THE ATTORNEY GENERAL 



Determination of substandard buildings 
as nuisance. — If substandard buildings in a 
town or city are alleged to be a nuisance, this 
may be determined in accordance with this 
section; this determination must be made 
subject to the due process provisions of state 
and federal Constitutions; if a nuisance is 
found to exist, the court can order its abate- 



ment; if the property owner fails to abate the 
nuisance, he may be bound over to a court 
having jurisdiction of misdemeanors; the 
municipality cannot itself demolish the of- 
fending buildings unless it condemns the 
property and compensates the owner. 1970 
Op. Att'y Gen. No. U70-229. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 56 Am. Jur. 2d, Municipal 
Corporations, Counties, and Political Subdi- 
visions, §§ 443-446. 58 Am. Jur. 2d, Nui- 
sances, §§ 36, 62, 403, 404, 425, 426. 

CJ.S. — 62 C.J.S., Municipal Corpora- 
tions, § 281. 

ALR. — Tannery or curing of hides as a 
nuisance, or subject of municipal regulation, 
32 ALR 1358. 

Validity of municipal ordinance prohibit- 
ing or regulating keeping of livestock, 32 
ALR 1372; 40 ALR 566. 

Right of abutting owner to complain of 
misuse of public park or violation of rights 
or easements appurtenant thereto, 60 ALR 
770. 

Right, as between state and county or 
municipality, to maintain action to abate a 
public nuisance in a street or highway, 65 
ALR 699. 

Validity, construction, and application of 
statute or ordinance declaring plant or es- 



tablishment which emits offensive odors to 
be a public nuisance, 141 ALR 285. 

Validity of provision of statute or ordi- 
nance that requires vacation of premises 
which do not comply with building or sani- 
tary regulations, upon notice to that effect, 
without judicial proceeding, 153 ALR 849. 

Landowner's or occupant's liability in 
damages for escape, without negligence, of 
harmful gases or fumes from premises, 54 
ALR2d 764; 2 ALR4th 1054. 

Dairy, creamery, or milk distributing 
plant, as nuisance, 92 ALR2d 974. 

Statutes, ordinances, or regulations relat- 
ing to private residential swimming pools, 92 
ALR2d 1283. 

Gasoline or other fuel storage tanks as 
nuisance, 50 ALR3d 209. 

Recovery in trespass for injury to land 
caused by airborne pollutants, 2 ALR4th 
1054. 



41-2-6. Notice of meeting to determine question of abatement. 

Repealed by Ga. L. 1981, p. 1739, § 1, effective April 17, 1981. 



Editor's notes. — This Code section was 
based on Laws 1833, Cobb's 1851 Digest, p. 
817; Code 1863, § 3997; Code 1868, § 4025; 



Code 1873, § 4096; Code 1882, § 4096; Civil 
Code 1895, § 4763; Civil Code 1910, § 5332; 
Code 1933, § 72-402. 



41-2-7. Power of counties and municipalities to repair, close, or demolish 
unfit buildings or structures; health hazards on private property; 
properties affected. 

(a) It is found and declared that in the counties and municipalities of 
this state there is the existence or occupancy of dwellings or other buildings 
or structures which are unfit for human habitation or for commercial, 
industrial, or business occupancy or use and are inimical to the welfare and 
are dangerous and injurious to the health, safety, and welfare of the people 



45 



41-2-7 NUISANCES 41-2-7 

of this state; and that a public necessity exists for the repair, closing, or 
demolition of such dwellings, buildings, or structures. It is found and 
declared that in the counties and municipalities of this state where there is 
in existence a condition or use of real estate which renders adjacent real 
estate unsafe or inimical to safe human habitation, such use is dangerous 
and injurious to the health, safety, and welfare of the people of this state and 
a public necessity exists for the repair of such condition or the cessation of 
such use which renders the adjacent real estate unsafe or inimical to safe 
human habitation. Whenever the governing authority of any county or 
municipality of this state finds that there exist in such county or munici- 
pality dwellings, buildings, or structures which are unfit for human habita- 
tion or for commercial, industrial, or business uses due to dilapidation and 
defects increasing the hazards of fire, accidents, or other calamities; lack of 
adequate ventilation, light, or sanitary facilities; or other conditions ren- 
dering such dwellings, buildings, or structures unsafe or unsanitary, or 
dangerous or detrimental to the health, safety, or welfare, or otherwise 
inimical to the welfare of the residents of such county or municipality, or 
vacant, dilapidated dwellings, buildings, or structures in which drug crimes 
are being committed, power is conferred upon such county or municipality 
to exercise its police power to repair, close, or demolish the aforesaid 
dwellings, buildings, or structures in the manner provided in this Code 
section and Code Sections 41-2-8 through 41-2-17. 

(b) All the provisions of this Code section and Code Sections 41-2-8 
through 41-2-17 including method and procedure may also be applied to 
private property where an accumulation of weeds, trash, junk, filth, and 
other unsanitary or unsafe conditions shall create a public health hazard or 
a general nuisance to those persons residing in the vicinity. A finding by any 
governmental health department, health officer, or building inspector that 
such property is a health or safety hazard shall constitute prima-facie 
evidence that said property is in violation of this Code section and Code 
Sections 41-2-8 through 41-2-17. 

(c) The exercise of the powers conferred upon counties in this Code 
section and in Code Sections 41-2-8 through 41-2-17 shall be limited to 
properties located in the unincorporated areas of such counties. (Ga. L. 
1966, p. 3089, § 2; Ga. L. 1977, p. 4445, § 2; Code 1981, § 41-2-7, enacted 
by Ga. L. 1982, p. 2107, § 45; Ga. L. 1983, p. 3, § 30; Ga. L. 1986, p. 10, 
§ 41; Ga. L. 1986, p. 1508, § 1; Ga. L. 1988, p. 1419, § 2; Ga. L. 1989, p. 
1161, § 1.) 

Code Commission notes. — Pursuant to Law reviews. — For annual survey of local 

Code Section 28-9-5, in 1987, in the first government law, see 38 Mercer L. Rev. 289 

sentence of subsection (b), "property" was (1986). 

substituted for "proeprty" and a comma was For note on 1989 amendment to this Code 

deleted following "conditions." section, see 6 Ga. St. U.L. Rev. 284 (1989). 



46 



41-2-8 ABATEMENT OF NUISANCES GENERALLY 41-2-8 

RESEARCH REFERENCES 

Am. Jur. 2d. — 39 Am. Jur. 2d, Health, C.J.S. — 39A C.J.S., Health and Environ- 

§§ 24, 33, 41-43. 58 Am. Jur. 2d, Nuisances, ment, §§ 30-32, 48, 49. 66 C.J.S., Nuisances, 
§§ 162, 163, 321. §§ 36, 40, 41, 109 et seq. 

41-2-8. Definitions for use in Code Sections 41-2-7 through 41-2-17. 

As used in Code Section 41-2-7, this Code section, and Code Sections 
41-2-9 through 41-2-17, the term: 

(1) "Closing" means securing and causing a dwelling, building, or 
structure to be vacated. 

(2) "Drug crime" means an act which is a violation of Article 2 of 
Chapter 13 of Title 16, known as the "Georgia Controlled Substances 
Act." 

(3) "Dwellings, buildings, or structures" means any building or struc- 
ture or part thereof used and occupied for human habitation or 
commercial, industrial, or business uses, or intended to be so used, and 
includes any outhouses and appurtenances belonging thereto or usually 
enjoyed therewith and also includes any building or structure of any 
design. As used in Code Section 41-2-7, this Code section, and Code 
Sections 41-2-9 through 41-2-17, the term "dwellings, buildings, or 
structures" shall not mean or include any farm, any building or structure 
located on a farm, or any agricultural facility or other building or 
structure used for the production, growing, raising, harvesting, storage, 
or processing of crops, livestock, poultry, or other farm products. 

(4) "Governing body" means the board of commissioners or sole 
commissioner of a county or the council, board of commissioners, board 
of aldermen, or other legislative body charged with governing a munic- 
ipality. 

(5) "Municipality" means any incorporated city within this state. 

(6) "Owner" means the holder of the title in fee simple and every 
mortgagee of record. 

(7) "Parties in interest" means persons in possession of said property 
and all individuals, associations, and corporations who have interest of 
record in the county where the property is located in a dwelling, building, 
or structure, including executors, administrators, guardians, and trustees. 

(8) "Public authority" means any housing authority or any officer who 
is in charge of any department or branch of the government of the 
municipality, county, or state relating to health, fire, or building regula- 
tions or to other activities concerning dwellings, buildings, or structures 
in the county or municipality. 

47 



41-2-9 nuisances 41-2-9 

(9) "Public officer" means the officer or officers who are authorized 
by Code Section 41-2-7, this Code section, and Code Sections 41-2-9 
through 41-2-17 and by ordinances adopted under Code Section 41-2-7, 
this Code section, and Code Sections 41-2-9 through 41-2-17 to exercise 
the powers prescribed by such ordinances or any agent of such officer or 
officers. 

(10) "Repair" means closing a dwelling, building, or structure or the 
cleaning or removal of debris, trash, and other materials present and 
accumulated which create a health or safety hazard in or about any 
dwelling, building, or structure. (Code 1981, § 41-2-8, enacted by Ga. L. 
1982, p. 2107, § 45; Ga. L. 1986, p. 1508, § 2; Ga. L. 1988, p. 1419, § 2; 
Ga. L. 1989, p. 14, § 41; Ga. L. 1989, p. 1161, § 2; Ga. L. 1991, p. 94, 
§ 41.) 

Law reviews. — For note on 1989 amend- 
ment to this Code section, see 6 Ga. St. U.L. 
Rev. 284 (1989). 

41-2-9. County or municipal ordinances relating to unfit buildings or 
structures. 

(a) As used in this Code section, the term "resident" means any person 
residing in the affected jurisdiction on or before the date on which the 
alleged nuisance arose. 

(b) Upon the adoption of an ordinance finding that dwelling, building, 
or structure conditions of the character described in Code Section 41-2-7 
exist within a county or municipality, the governing body of such county or 
municipality is authorized to adopt ordinances relating to the dwellings, 
buildings, or structures within such county or municipality which are unfit 
for human habitation or commercial, industrial, or business uses. Such 
ordinances shall include the following provisions: 

(1) That a public officer be designated or appointed to exercise the 
powers prescribed by the ordinances; 

(2) That whenever a request is filed with the public officer by a public 
authority or by at least five residents of the municipality or by five 
residents of the unincorporated area of the county if the property in 
question is located in the unincorporated area of the county charging 
that any dwelling, building, or structure is unfit for human habitation or 
for commercial, industrial, or business use or whenever it appears to the 
public officer (on his own motion) that any dwelling, building, or 
structure is unfit for human habitation or is unfit for its current 
commercial, industrial, or business use or is vacant, dilapidated, and 
being used in connection with the commission of drug crimes, the public 
officer shall, if his preliminary investigation discloses a basis for such 
charges, issue and cause to be served upon the owner of and any parties 

48 



41-2-9 ABATEMENT OF NUISANCES GENERALLY 41-2-9 

in interest in such dwelling, building, or structure a complaint stating the 
charges in that respect and containing a notice that a hearing will be held 
before the public officer (or his designated agent) at a place within the 
county or municipality in which the property is located, fixed not less 
than ten days nor more than 30 days after the serving of said complaint; 
that the owner and any parties in interest shall be given the right to file 
an answer to the complaint and to appear in person, or otherwise, and 
give testimony at the place and time fixed in the complaint; and that the 
rules of evidence prevailing in courts of law or equity shall not be 
controlling in hearings before the public officer; 

(3) That if, after such notice and hearing, the public officer deter- 
mines that the dwelling, building, or structure under consideration is 
unfit for human habitation or is unfit for its current commercial, 
industrial, or business use or is vacant, dilapidated, and being used in 
connection with the commission of drug crimes, he shall state in writing 
his findings of fact in support of such determination and shall issue and 
cause to be served upon the owner thereof an order: 

(A) If the repair, alteration, or improvement of the said dwelling, 
building, or structure can be made at a reasonable cost in relation to 
the value of the dwelling, building, or structure, requiring the owner or 
parties in interest, within the time specified in the order, to repair, alter, 
or improve such dwelling, building, or structure so as to render it fit for 
human habitation or for current commercial, industrial, or business 
use or to vacate and close the dwelling, building, or structure as a 
human habitation; or 

(B) If the repair, alteration, or improvement of the said dwelling, 
building, or structure cannot be made at a reasonable cost in relation 
to the value of the dwelling, building, or structure, requiring the owner 
or parties in interest, within the time specified in the order, to remove 
or demolish such dwelling, building, or structure. 

In no event shall the governing authority of any such county or 
municipality require removal or demolition of any dwelling, building, or 
structure except upon a finding that the cost of repair, alteration, or 
improvement thereof exceeds one-half the value such dwelling, building, 
or structure will have when repaired to satisfy the minimum requirements 
of this law; 

(4) That, if the owner or parties in interest fail to comply with an order 
to vacate and close or demolish the dwelling, building, or structure, the 
public officer may cause such dwelling, building, or structure to be 
repaired, altered, or improved or to be vacated and closed or demolished; 
and that the public officer may cause to be posted on the main entrance 
of any building, dwelling, or structure so closed a placard with the 
following words: 

49 



41-2-9 NUISANCES 41-2-9 

"This building is unfit for human habitation or commercial, indus- 
trial, or business use; the use or occupation of this building for human 
habitation or for commercial, industrial, or business use is prohibited 
and unlawful."; 

(5) That, if the owner fails to comply with any order to remove or 
demolish the dwelling, building, or structure, the public officer may 
cause such dwelling, building, or structure to be removed or demolished; 
provided, however, that the duties of the public officer, set forth in 
paragraph (4) of this Code section and this paragraph, shall not be 
exercised until the governing body shall have by ordinance ordered the 
public officer to proceed to effectuate the purpose of Code Sections 
41-2-7, 41-2-8, this Code section, and Code Sections 41-2-10 through 
41-2-17 with respect to the particular property or properties which the 
public officer shall have found to be unfit for human habitation or unfit 
for its current commercial, industrial, or business use, which property or 
properties shall be described in the ordinance; 

(6) That the amount of the cost of such vacating and closing or 
removal or demolition by the public officer shall be a lien against the real 
property upon which such cost was incurred. Said lien shall attach to the 
real property upon the payment of all costs of demolition by the county 
or municipality and the filing of an itemized statement of the total sum 
of said costs by the public officer in the office of the clerk of the 
governing body of the county or municipality on a lien docket main- 
tained by said clerk for such purposes. If the dwelling, building, or 
structure is removed or demolished by the public officer he shall sell the 
materials of such dwellings, buildings, or structures and shall credit the 
proceeds of such sale against the cost of the removal or demolition and 
any balance remaining shall be deposited in the superior court by the 
public officer, shall be secured in such manner as may be directed by such 
court, and shall be disbursed by such court to the persons found to be 
entitled thereto by final order or decree of such court. Nothing in this 
Code section shall be construed to impair or limit in any way the power 
of the county or municipality to define and declare nuisances and to 
cause their removal or abatement by summary proceedings or otherwise; 

(7) Counties and municipal corporations may enforce the collection 
of any amount due on such lien for removal or demolition of dwellings, 
buildings, or structures only in the following manner: 

(A) The owner or parties at interest shall be allowed to satisfy the 
amount due on such lien by paying to the county or municipal 
corporation, within 30 days after the perfection of said lien, a sum of 
money equal to 25 percent of the total amount due and by further 
paying to said county or municipal corporation the remaining balance 
due on such lien, together with interest at the rate of 7 percent per 
annum, in three equal annual payments, each of which shall become 

50 



41-2-10 ABATEMENT OF NUISANCES GENERALLY 41-2-10 

due and payable on the anniversary date of the initial payment made 
as hereinabove prescribed; 

(B) Should the property upon which such lien is perfected be sold, 
transferred, or conveyed by the owner or parties at interest at any time 
prior to the termination of the said three-year period, then the entire 
balance due on such lien shall be due and payable to the county or 
municipal corporation; and 

(C) Should the amount due on such lien, or any portion thereof, be 
unpaid after the passage of said three-year period, or upon the 
occurrence of the contingency provided for in subparagraph (B) of 
this paragraph, the county or municipal corporation may enforce the 
collection of any amount due on such lien for alteration, repair, 
removal, or demolition of dwellings, buildings, or structures in the 
same manner as provided in Code Section 48-5-358 and other applica- 
ble state statutes. This procedure shall be subject to the right of 
redemption by any person having any right, title, or interest in or lien 
upon said property, all as provided by Article 3 of Chapter 4 of Tide 48. 
(Code 1981, § 41-2-9, enacted by Ga. L. 1982, p. 2107, § 45; Ga. L. 
1983, p. 3, § 30; Ga. L. 1984, p. 22, § 41; Ga. L. 1988, p. 1419, § 2; Ga. 
L. 1989, p. 14, § 41; Ga. L. 1989, p. 1161, § 3; Ga. L. 1990, p. 1347, § 1; 
Ga. L. 1991, p. 94, § 41.) 

Law reviews. — For note on 1989 amend- 
ment to this Code section, see 6 Ga. St. U.L. 
Rev. 284 (1989). 

41-2-10. Determination by public officer that dwelling, building, or struc- 
ture is unfit or vacant, dilapidated, and being used in connection 
with the commission of drug crimes. 

(a) An ordinance adopted by a county or municipality under Code 
Sections 41-2-7 through 41-2-9, this Code section, and Code Sections 41-2-11 
through 41-2-17 shall provide that the public officer may determine, under 
existing ordinances, that a dwelling, building, or structure is unfit for 
human habitation or is unfit for its current commercial, industrial, or 
business use if he finds that conditions exist in such building, dwelling, or 
structure which are dangerous or injurious to the health, safety, or morals 
of the occupants of such dwelling, building, or structure; of the occupants 
of neighborhood dwellings, buildings, or structures; or of other residents of 
such county or municipality. Such conditions may include the following 
(without limiting the generality of the foregoing): 

(1) Defects therein increasing the hazards of fire, accidents, or other 
calamities; 

(2) Lack of adequate ventilation, light, or sanitary facilities; 

(3) Dilapidation; 

51 



41-2-11 NUISANCES 41-2-11 

(4) Disrepair; 

(5) Structural defects; and 

(6) Uncleanliness. 

Such ordinance may provide additional standards to guide the public 
officer, or his agents, in determining the fitness of a dwelling, building, or 
structure for human habitation or for its current commercial, industrial, or 
business use. 

(b) An ordinance adopted by a county or municipality under Code 
Sections 41-2-7 through 41-2-9, this Code section, and Code Sections 41-2-11 
through 41-2-17 shall provide that the public officer may determine, under 
existing ordinances, that a dwelling, building, or structure is vacant, 
dilapidated, and being used in connection with the commission of drug 
crimes upon personal observation or report of a law enforcement agency 
and evidence of drug crimes being committed. (Code 1981, § 41-2-10, 
enacted by Ga. L. 1982, p. 2107, § 45; Ga. L. 1988, p. 1419, § 2; Ga. L. 1989, 
p. 1161, § 4; Ga. L. 1991, p. 94, § 41.) 

Code Commission notes. — Pursuant to Law reviews. — For note on 1989 amend- 
Code Section 28-9-5, in 1988, "municipality, ment to this Code section, see 6 Ga. St U.L. 
Such" was substituted for "municipality; Rev. 284 (1989). 
such" in the introductory paragraph of the 
Code section. 

41-2-11. Powers of public officers in regard to unfit buildings or structures. 

An ordinance adopted by the governing body of the county or munici- 
pality may authorize the public officer to exercise such powers as may be 
necessary or convenient to carry out and effectuate the purpose and 
provisions of Code Sections 41-2-7 through 41-2-10, this Code section, and 
Code Sections 41-2-12 through 41-2-17, including the following powers in 
addition to others granted in Code Sections 41-2-7 through 41-2-10 and 
Code Sections 41-2-12 through 41-2-17: 

(1) To investigate the dwelling conditions in the unincorporated area 
of the county or in the municipality in order to determine which 
dwellings, buildings, or structures therein are unfit for human habitation 
or are unfit for current commercial, industrial, or business use or are 
vacant, dilapidated, and being used in connection with the commission of 
drug crimes; 

(2) To administer oaths and affirmations, to examine witnesses, and to 
receive evidence; 

(3) To enter upon premises for the purpose of making examinations; 
provided, however, that such entries shall be made in such manner as to 
cause the least possible inconvenience to the persons in possession; 

52 



41-2-12 ABATEMENT OF NUISANCES GENERALLY 41-2-12 

(4) To appoint and fix the duties of such officers, agents, and 
employees as he deems necessary to carry out the purposes of the 
ordinances; and 

(5) To delegate any of his functions and powers under the ordinance 
to such officers and agents as he may designate. (Code 1981, § 41-2-11, 
enacted by Ga. L. 1982, p. 2107, § 45; Ga. L. 1988, p. 1419, § 2; Ga. L. 
1989, p. 1161, § 5; Ga. L. 1991, p. 94, § 41.) 

Law reviews. — For note on 1989 amend- 
ment to this Code section, see 6 Ga. St. U.L. 
Rev. 284 (1989). 

41-2-12. Service of complaints or orders upon parties in interest and 
owners of unfit buildings or structures. 

(a) Complaints or orders issued by a public officer pursuant to an 
ordinance adopted under Code Sections 41-2-7 through 41-2-11, this Code 
section, and Code Sections 41-2-13 through 41-2-17 shall, in all cases, be 
served upon each person in possession of said property, each owner, and 
each party in interest; and the return of service signed by the public officer 
or his agent or an affidavit of service executed by any citizen of this state, 
reciting that a copy of such complaint or orders was served upon each 
person in possession of said property, each owner, and each party in interest 
personally or by leaving such copy at the place of his residence, shall be 
sufficient evidence as to the service of such person in possession, owner, and 
party in interest. 

(b) If any of the owners and parties in interest shall reside out of the 
county or municipality, service shall be perfected by causing a copy of such 
complaint or orders to be served upon such party or parties by the sheriff 
or any lawful deputy of the county of the residence of such party or parties 
or such service may be made by any citizen; and the return of such sheriff 
or lawful deputy or the affidavit of such citizen that such party or parties 
were served either personally or by leaving a copy of the complaint or 
orders at the residence shall be conclusive as to such service. 

(c) Nonresidents of this state shall be served by posting a copy of such 
complaint or orders in a conspicuous place on premises affected by the 
complaint or orders. Where the address of such nonresidents is known, a 
copy of such complaint or orders shall be mailed to them by registered or 
certified mail. 

(d) In the event either the owner or any party in interest is a minor or an 
insane person or person laboring under disabilities, the guardian or other 
personal representative of such person shall be served and if such guardian 
or personal representative resides outside the county or municipality or is a 
nonresident, he shall be served as provided for in subsection (c) of this 
Code section or this subsection in such cases. If such minor or insane 

53 



41-2-13 NUISANCES 41-2-13 

person or person laboring under disabilities has no guardian or personal 
representative or in the event such minor or insane person lives outside the 
county or municipality or is a nonresident, service shall be perfected by 
serving such minor or insane person personally or by leaving a copy at the 
place of his residence which shall be sufficient evidence as to the service of 
such person or persons; in the case of other persons who live outside of the 
county or municipality or are nonresidents, service shall be perfected by 
serving the judge of the probate court of the county wherein such property 
is located who shall stand in the place of and protect the rights of such 
minor or insane person or appoint a guardian ad litem for such person. 

(e) In the event the whereabouts of any owner or party in interest is 
unknown and the same cannot be ascertained by the public officer in the 
exercise of reasonable diligence and the public officer shall make an 
affidavit to that effect, then the service of such complaint or order upon 
such persons shall be made in the same manner as provided in subsection 
(c) of this Code section or service may be perfected upon any person, firm, 
or corporation holding itself out as an agent for the property involved. 

(f ) A copy of such complaint or orders shall also be filed in the proper 
office or offices for the filing of lis pendens notice in the county in which 
the dwelling, building, or structure is located and such filing of the 
complaint or orders shall have the same force and effect as other lis 
pendens notices provided by law. Any such complaint or orders or an 
appropriate lis pendens notice may contain a statement to the effect that a 
lien may arise against the described property and that an itemized 
statement of such lien is maintained on a lien docket maintained by the 
clerk of the governing body of the county or municipality. (Code 1981, 
§ 41-2-12, enacted by Ga. L. 1982, p. 2107, § 45; Ga. L. 1983, p. 3, § 30; Ga. 
L. 1986, p. 1508, § 3; Ga. L. 1988, p. 1419, § 2; Ga. L. 1989, p. 14, § 41; Ga. 
L. 1991, p. 94, § 41; Ga. L. 1992, p. 1538, § 1.) 

Code Commission notes. — Pursuant to "Code Sections 41-2-13 through 41-2-17" in 
Code Section 28-9-5, in 1991, "Code Section subsection (a). 
41-2-13 through 41-2-17" was changed to 

41-2-13. Injunctions against order to repair, close, or demolish unfit 
buildings or structures. 

Any person affected by an order issued by the public officer may petition 
to the superior court for an injunction restraining the public officer from 
carrying out the provisions of the order and the court may, upon such 
petition, issue a temporary injunction restraining the public officer pend- 
ing the final disposition of the cause; provided, however, that such person 
shall present such petition to the court within 15 days of the posting and 
service of the order of the public officer. De novo hearings shall be had by 
the court on petitions within 20 days. The court shall hear and determine 
the issues raised and shall enter such final order or decree as law and justice 

54 



41-2-14 ABATEMENT OF NUISANCES GENERALLY 41-2-17 

may require; provided, however, that it shall not be necessary to file bond 
in any amount before obtaining a temporary injunction under this Code 
section. (Code 1981, § 41-2-13, enacted by Ga. L. 1982, p. 2107, § 45; Ga. 
L. 1983, p. 3, § 30.) 

41-2-14. Taking of unfit buildings or structures by eminent domain; police 
power. 

Nothing in Code Sections 41-2-7 through 41-2-13, this Code section, and 
Code Sections 41-2-15 through 41-2-17 shall be construed as preventing the 
owner or owners of any property from receiving just compensation for the 
taking of such property by the power of eminent domain under the laws of 
this state nor as permitting any property to be condemned or destroyed 
except in accordance with the police power of this state. (Code 1981, 
§ 41-2-14, enacted by Ga. L. 1982, p. 2107, § 45; Ga. L. 1991, p. 94, § 41.) 

41-2-15. Authority to use revenues, grants, and donations to repair, close, or 
demolish unfit buildings or structures. 

Any county or municipality is authorized to make such appropriations 
from its revenues as it may deem necessary and may accept and apply grants 
or donations to assist it in carrying out the provisions of ordinances adopted 
in connection with the exercise of the powers granted under this chapter. 
(Code 1981, § 41-2-15, enacted by Ga. L. 1982, p. 2107, § 45; Ga. L. 1988, 
p. 1419, § 2; Ga. L. 1989, p. 14, § 41.) 

41-2-16. Construction of Code Sections 41-2-7 through 41-2-17 with county 
or municipal local enabling Act, charter, and other laws, ordi- 
nances, and regulations. 

Nothing in Code Sections 41-2-7 through 41-2-15, this Code section, and 
Code Section 41-2-17 shall be construed to abrogate or impair the powers 
of the courts or of any department of any county or municipality to enforce 
any provisions of its local enabling Act, its charter, or its ordinances or 
regulations nor to prevent or punish violations thereof; and the powers 
conferred by this article shall be in addition to and supplemental to the 
powers conferred by any other law. (Code 1981, § 41-2-16, enacted by Ga. 
L. 1982, p. 2107, § 45; Ga. L. 1988, p. 1419, § 2; Ga. L. 1991, p. 94, § 41.) 

41-2-17. Prior ordinances relating to repair, closing, or demolition of unfit 
buildings or structures. 

Ordinances relating to the subject matter of Code Sections 41-2-7 
through 41-2-16 and this Code section adopted prior to April 1, 1966, shall 
have the same force and effect on and after said date as ordinances adopted 
subsequent to and by authority of these Code sections. (Code 1981, 
§ 41-2-17, enacted by Ga. L. 1982, p. 2107, § 45; Ga. L. 1991, p. 94, § 41.) 

55 



41-3-1 



NUISANCES 

CHAPTER 3 



41-3-1 



PLACES USED FOR UNLAWFUL SEXUAL PURPOSES 



Sec. 
41-3-1 



41-3-1.1. 



41-3-2. 



41-3-3. 



41-3-4. 



41-3-5. 



41-3-6. 



Establishment, maintenance, or 
use of building, structure, or 
place for unlawful sexual pur- 
poses; evidence of nuisance. 
Substantial drug related activity 
upon real property; knowledge 
of owner. 

Action to enjoin nuisance per- 
petually; temporary restraining 
order or interlocutory injunc- 
tion authorized. 

Dismissal of complaint filed by 
private citizen; substitution of 
district attorney or another pri- 
vate citizen for original com- 
plainant. 

Notice of hearing upon applica- 
tion for temporary restraining 
order or interlocutory injunc- 
tion. 

Procedure for trial of action gen- 
erally; admissibility of evidence 
of general reputation of build- 
ing, structure, or place. 
Taxation of cost of action against 
private citizen bringing action 
without reasonable ground or 
cause. 



Sec. 
41-3-7. 



41-3-8. 



41-3-9. 



41-3-10. 



41-3-11. 



41-3-12. 



41-3-13. 



Order of abatement generally; 
breaking and entering or using 
closed building, structure, or 
place; fees for removal, sale, or 
closure of property. 
Disposition of proceeds of sale of 
personal property. 
Suspension of abatement order 
and release of property; effect of 
release of property. 
Issuance of permanent injunc- 
tion; entry and enforcement of 
judgment; disposition of sums 
arising from enforcement of 
judgment. 

Injunction binding throughout 
judicial circuit in which issued; 
violation of provisions of injunc- 
tion deemed contempt 
Contempt proceedings; punish- 
ment for contempt of court. 
Abatement of nuisance by state 
courts and municipal courts of 
municipalities having population 
of 15,000 or more. 



Cross references. — Penalties for sodomy, 
prostitution, keeping place of prostitution, 
etc., Ch. 6, T. 16. Use of rooms in road- 



houses, public dance halls, etc., for immoral 
purposes, § 43-21-61. 



JUDICIAL DECISIONS 



Nude dancing. — The nuisance statute 
had no application in the context of an 
action attempting to enjoin nude dancing at 
defendant's establishment. Fenimore v. 
State, 263 Ga. 760, 438 S.E.2d 911 (1993). 



Cited in Davis v. Stark, 198 Ga. 223, 31 
S.E.2d 592 (1944); Imperial Massage & 
Health Studio, Inc. v. Lee, 231 Ga. 482, 202 
S.E.2d426 (1973). 



41-3-1. Establishment, maintenance, or use of building, structure, or place 
for unlawful sexual purposes; evidence of nuisance. 

(a) Whosoever shall knowingly erect, establish, continue, maintain, use, 
own, or lease any building, structure, or place used for the purpose of 



56 



41-3-1 



PLACES USED FOR UNLAWFUL SEXUAL PURPOSES 



41-3-1 



lewdness, prostitution, sodomy, the solicitation of sodomy, or masturbation 
for hire shall be guilty of maintaining a nuisance; and the building, 
structure, or place, and the ground itself in or upon which such lewdness, 
prostitution, sodomy, the solicitation of sodomy, or masturbation for hire 
shall be conducted, permitted, carried on, continued, or shall exist, and the 
furniture, fixtures, and other contents of such building or structure are also 
declared to be a nuisance and may be enjoined or otherwise abated as 
provided in this chapter. 

(b) The conviction of the owner or operator of any building, structure, 
or place for any of the offenses stated in subsection (a) of this Code section, 
based on conduct or an act or occurrence in or on the premises of such 
building, structure, or place, shall be prima-facie evidence of the nuisance 
and the existence thereof. (Ga. L. 1917, p. 177, § 1; Code 1933, § 72-301; 
Ga. L. 1975, p. 402, § 2; Ga. L. 1979, p. 1025, § 1.) 



Cross references. — Provisions regarding 
public nuisance status of premises used in 



violation of laws relating to obscenity, 
§ 16-12-82. 



JUDICIAL DECISIONS 



Use of evidentiary standard does not con- 
vert action to equitable proceeding. — 

Where a party elects to proceed under 
§ 41-2-5, it is an action at law and using the 
evidentiary standard contained in this sec- 
tion does not convert the proceeding into an 
equitable one. Yield, Inc. v. City of Atlanta, 
145 Ga. App. 172, 244 S.E.2d 32, cert, dis- 
missed, 241 Ga. 593, 247 S.E.2d 764 (1978). 

Allegations establishing cause of action. — 
A petition by the solicitor general (now 
district attorney) to abate described pre- 
mises as a public nuisance, alleging that the 
premises are being maintained and used for 
the purpose of prostitution and assignation, 
in violation of this section, et seq., and 
attaching as a part of the petition affidavits 
by three persons who testify that the pre- 
mises have been used as alleged, states a 
cause of action; a judgment overruling a 
general demurrer (now motion to dismiss) 
to the petition is not erroneous. Carpenter v. 
State ex rel. Hains, 194 Ga. 395, 21 S.E.2d 
643 (1942). 

The petition, alleging in substance that 
the defendant was operating a lewd house; 
was operating and maintaining a gaming 
house; was illegally selling beer, whiskey and 
other alcoholic beverages to minors; was 
maintaining on his premises a juke box 
whose loud playing was disturbing the neigh- 
borhood and people passing by on the high- 



way; and was providing a gathering place for 
minors and the general public to drink, 
dance and carouse, was sufficient to state a 
cause of action for abatement of a public 
nuisance by the solicitor general (now dis- 
trict attorney). Lee v. Hayes, 215 Ga. 330, 
110S.E.2d624 (1959). 

Modification of judgment so as to release 
building and contents. — In a proceeding 
under this chapter, to abate as a nuisance a 
described tourist camp owned by the defen- 
dant, on the ground that "said place and its 
contents" were being knowingly maintained 
and used by the defendant for the purpose 
of lewdness, assignation and prostitution, 
where the judge, by consent trying the case, 
without a jury, found and decreed that all of 
the buildings in the tourist camp, with the 
personalty in each, were used by the defen- 
dant "as one plant or combine" for the 
purpose of lewdness and prostitution, the 
defendant, after an affirmance of such judg- 
ment by the Supreme Court, could not 
obtain a modification of it so as to release 
one of the buildings and its contents, by 
showing that this part of the tourist camp 
was in no way connected with the alleged 
nuisance; the original finding and decree as 
to this matter being conclusive. Carpenter v. 
State, 195 Ga. 434, 24 S.E.2d 404 (1943). 

Cited in Crews v. State ex rel. Hayes, 215 
Ga. 698, 113S.E.2d 116 (1960); Whitehead v. 



57 



41-3-1.1 NUISANCES 41-3-1.1 

Hasty, 235 Ga. App. 331, 219 S.E.2d 443 Inc. v. City of Atlanta, 492 F. Supp. 511 (N.D. 
(1975); Yield, Inc. v. City of Atlanta, 239 Ga. Ga. 1980); Gateway Books, Inc. v. State, 247 
578, 238 S.E.2d 351 (1977); 660 Lindbergh, Ga. 16, 276 S.E.2d 1 (1981). 

RESEARCH REFERENCES 

Am. Jur. 2d. — 24 Am. Jur. 2d, Disorderly Validity and construction of statute or 

Houses, § 41. 58 Am. Jur. 2d, Nuisances, ordinances forbidding treatment in health 

§§ 50-65, 348. clubs or massage salons by persons of the 

C.J.S. — 66 C.J.S., Nuisances, §§ 45, 109. opposite sex, 51 ALR3d 936. 

ALR. — Disorderly character of house as Massage parlor as nuisance, 80 ALR3d 

affected by the number of females who 1020. 
reside therein or resort thereto for immoral 
purposes, 12 ALR 529. 

41-3-1.1. Substantial drug related activity upon real property, knowledge of 
owner. 

(a) As used in this Code section, the term: 

(1) "Drug related indictment" means an indictment by a grand jury 
for an offense involving violation of Code Section 16-13-30; provided, 
however, that any such indictments which result directly from coopera- 
tion between the property owner and a law enforcement agency shall not 
be considered a drug related indictment for purposes of this Code 
section. 

(2) "Substantial drug related activity" means activity resulting in six or 
more separate incidents resulting in drug related indictments involving 
violations occurring within a 12 month period on the same parcel of real 
property. 

(b) Any owner of real property who has actual knowledge that substantial 
drug related activity is being conducted on such property shall be guilty of 
maintaining a nuisance, and such real property shall be deemed a nuisance 
and may be enjoined or otherwise abated as provided in this chapter. 

(c) The owner of real property shall be deemed to have actual knowl- 
edge of substantial drug related activity occurring on a parcel of real 
property if the district attorney of the county in which the property is 
located notifies the owner in writing of three or more separate incidents 
within a 12 month period which result in drug related indictments and, 
after the receipt of such notice and within 12 months of the first of the 
incidents resulting in a drug related indictment which are the subject of 
such notice, three or more separate incidents occur which result in drug 
related indictments. (Code 1981, § 41-3-1.1, enacted by Ga. L. 1996, p. 666, 
§ 1.) 

Effective date. — This Code section be- 
came effective July 1, 1996. 

58 



41-3-2 PLACES USED FOR UNLAWFUL SEXUAL PURPOSES 41-3-3 

41-3-2. Action to enjoin nuisance perpetually; temporary restraining order 
or interlocutory injunction authorized. 

Whenever a nuisance is kept, maintained, or exists, as denned in Code 
Section 41-3-1 or 41-3-1.1, the district attorney or any private citizen of the 
county may maintain an action in the name of the state upon the relation 
of such district attorney or private citizen to enjoin said nuisance perpetu- 
ally, the person or persons conducting or maintaining the same, and the 
owner or agent of the building, structure, or place, and the ground itself in 
or upon which such nuisance exists. In an action to enjoin a nuisance, the 
court, upon application therefor alleging that the nuisance complained of 
exists, shall order a temporary restraining order or an interlocutory 
injunction as provided in Code Section 9-11-65. (Ga. L. 1917, p. 177, § 2; 
Code 1933, § 72-302; Ga. L. 1996, p. 666, § 2.) 

The 1996 amendment, effective July 1, 
1996, inserted "or 41-3-1.1" near the begin- 
ning of the first sentence. 

JUDICIAL DECISIONS 

Cited in Carpenter v. State ex rel. Hains, Books, Inc. v. State, 247 Ga. 16, 276 S.E.2d 1 
194 Ga. 395, 21 S.E.2d 643 (1942); Gateway (1981). 

RESEARCH REFERENCES 

Am. Jut. 2d. — 24 Am. Jur. 2d, Disorderly ALR. — Right to enjoin threatened or 

Houses, § 42. 42 Am. Jur. 2d, Injunctions, anticipated nuisance, 7 ALR 749; 26 ALR 

§§ 15, 265, 285-287. 58 Am. Jur. 2d, Nui- 937; 32 ALR 724; 55 ALR 880. 

sances, §§ 259, 260, 267. Venue of suit to enjoin nuisance, 7 ALR2d 

C.J.S. — 43 C.J.S., Injunctions, §§ 17, 48I. 
20-28. 66 C.J.S., Nuisances, §§ 77, 78, 125. 

41-3-3. Dismissal of complaint filed by private citizen; substitution of 
district attorney or another private citizen for original complainant. 

If the complaint is filed by a private citizen, it shall not be dismissed 
except upon filing of a sworn statement by the complainant and his 
attorney setting forth the reasons why the action should be dismissed and 
upon approval of the dismissal by the district attorney in writing or in open 
court. If the court shall be of the opinion that the action ought not to be 
dismissed, it may direct the district attorney to maintain the action and, if 
the action is continued more than one term of court, any private citizen of 
the county or the district attorney may be substituted for the original 
complainant and directed to maintain the action. (Ga. L. 1917, p. 177, § 3; 
Code 1933, § 72-306.) 



59 



41-3-4 NUISANCES 41-3-5 

RESEARCH REFERENCES 

Am. Jut. 2d. — 24 Am. Jur. 2d, Dismissal, C.J.S. — 27 C.J.S., Dismissal and Nonsuit, 

Discontinuance and Nonsuit, § 11. 42 Am. § 8. 43A C.J.S., Injunctions, § 218. 
Jur. 2d, Injunctions, § 235. 

41-3-4. Notice of hearing upon application for temporary restraining order 
or interlocutory injunction. 

Notice shall be given to the defendant of the hearing of the application 
for a temporary restraining order or an interlocutory injunction as pro- 
vided in Code Section 9-11-65. (Ga. L. 1917, p. 177, § 2; Code 1933, 
§ 72-303.) 

RESEARCH REFERENCES 



Am. Jur. 2d. — 42 Am. Jur. 2d, Injunc- C.J.S. — 66 C.J.S., Nuisances, §§ 86, 88, 
tions, §§ 263, 267. 58 Am. Jur. 2d, Nui- 125. 
sances, §§ 124, 237. 

41-3-5. Procedure for trial of action generally; admissibility of evidence of 
general reputation of building, structure, or place. 

An action to enjoin a nuisance shall be triable as all other civil cases. In 
such action, evidence of the general reputation of the building, structure, 
or place shall be admissible for the purpose of proving the existence of such 
nuisance. (Ga. L. 1917, p. 177, § 3; Code 1933, § 72-305.) 

JUDICIAL DECISIONS 

Amendment showing abatement pending lutely discontinued a few days after the be- 

suit. — It was error to refuse to allow a ginning of the proceeding for injunction, 

verified amendment to the defendant's an- and several weeks before the trial, and that 

swer to a petition to enjoin him from con- all issues in the proceeding had become 

ducting a nuisance in violation of this stat- moot. Yancy v. State ex rel. Kelly, 161 Ga. 

ute; the allegations of the amendment 138, 129 S.E. 642 (1925). 
showing that the nuisance had been abso- 

RESEARCH REFERENCES 



Am. Jur. 2d. — 58 Am. Jur. 2d, Nuisances, ALR. — Venue of suit to enjoin nuisance, 
§ 174. 7ALR2d481. 

C.J.S. — 27 C.J.S., Disorderly Houses, 
§ 14. 66 C.J.S., Nuisances, § 127. 



60 



41-3-6 PLACES USED FOR UNLAWFUL SEXUAL PURPOSES 41-3-7 

41-3-6. Taxation of cost of action against private citizen bringing action 
without reasonable ground or cause. 

If the action shall be brought by a private citizen and the court shall find 
that there was no reasonable ground or cause for the action, the cost may 
be taxed to such citizen. (Ga. L. 1917, p. 177, § 3; Code 1933, § 72-307.) 

RESEARCH REFERENCES 

Am. Jur. 2d. — 42 Am. Jur. 2d, Injunc- C.J.S. — 43ACJ.S., Injunctions, § 252. 66 
tions, §§ 308, 309. C.J.S., Nuisances, § 137. 

41-3-7. Order of abatement generally; breaking and entering or using 
closed building, structure, or place; fees for removal, sale, or 
closure of property. 

(a) If the existence of a nuisance shall be established in an action as 
provided in this chapter, an order of abatement shall be entered as a part 
of the judgment in the case, which order shall direct the removal from the 
building, structure, or place of all fixtures, furniture, and chattels used in 
conducting the nuisance and shall direct the sale thereof in the manner 
provided for the sale of chattels under execution; provided, however, that if 
it shall appear to the judge that the furniture and chattels are owned by 
others than the occupants of the building, structure, or place, he may order 
the effectual closing of the building, structure, or place against its use for 
any purpose for a period of one year, unless sooner released. 

(b) If any person shall break and enter or use a building, structure, or 
place directed to be closed, as provided in subsection (a) of this Code 
section, he shall be punished as for contempt. 

(c) For removing and selling the movable property, the sheriff or other 
duly qualified levying officer of the court shall be entitled to charge and 
receive the same fees as he would for levying upon and selling like property 
on execution; and, for closing the premises and keeping them closed, a 
reasonable sum shall be allowed by the court. (Ga. L. 1917, p. 177, § 5; 
Code 1933, § 72-309.) 

JUDICIAL DECISIONS 

The owner of the personalty is not an This, however, is only one of the penalties 

owner such as is intended by the phrase contemplated; for the "building or place" 

"owned by others than the occupants" and may itself be closed and kept "closed for a 

as against him the personal property shall be period of one year, unless sooner released." 

removed from the building or place where Carpenter v. State, 195 Ga. 434, 24 S.E.2d 

the nuisance was maintained, and shall be 404 (1943). 

sold. In this respect the statute is mandatory, The reference in this section, to owner- 

and the defendant must abide the sale and ship of personalty by others than the "occu- 

cannot prevent it by paying the costs directly, pants," and the word "owner," as it appears 

61 



41-3-8 NUISANCES 41-3-9 

in § 41-3-9, providing for bond, does not the building or place. Carpenter v. State, 195 
contemplate a situation in which the owner Ga. 434, 24 S.E.2d 404 (1943). 
is himself the party who maintained the Evidence materially affecting public inter- 
nuisance. Carpenter v. State, 195 Ga. 434, 24 est. — If the judge has discretion to allow the 
S.E.2d 404 (1943). building or buildings reopened within less 
The first part of this section, as to what the than one year on petition of the defendant, 
judgment shall contain, simply declares in it is not an arbitrary discretion; and before 
express terms that it shall include direction he could properly exercise any discretion in 
for removal and sale of the personalty, while such matter, some new fact or condition 
the meaning of the proviso is, that although materially affecting the public interest 
the personal property may be owned by should be introduced. Carpenter v. State, 
others than the occupants, so that it cannot 195 Ga. 434, 24 S.E.2d 404 (1943). 
be sold under the abatement judgment, the Cited in Fuller v. Fuller, 197 Ga. 719, 30 
court may still order the effective closing of S.E.2d 600 (1944). 

RESEARCH REFERENCES 

Am. Jut. 2d. — 24 Am. Jur. 2d, Disorderly C.J.S. — 43A C.J.S., Injunctions, § 285 et 
Houses, § 48. 42 Am. Jur. 2d, Injunctions, seq. 66 C.J.S., Nuisances, §§ 108, 129, 138. 
§§ 336-340. 58 Am. Jur. 2d, Nuisances, 
§§ 367, 374, 376, 422, 428. 

41-3-8. Disposition of proceeds of sale of personal property. 

The proceeds of the sale of the personal property, as provided in Code 
Section 41-3-7, shall be applied in payment of the cost of the action and 
abatement, and the balance, if any, shall be paid to the defendant. (Ga. L. 
1917, p. 177, § 6; Code 1933, § 72-310.) 

RESEARCH REFERENCES 

C.J.S. — 66 CJ.S., Nuisances, § 207. 

41-3-9. Suspension of abatement order and release of property; effect of 
release of property. 

(a) If the owner of the building, structure, or place ordered abated shall 
appear and pay all costs of the proceedings and file a bond with sureties to 
be approved by the clerk in the full value of the property, to be ascertained 
by the court, conditioned that he will immediately abate the nuisance and 
prevent the same from being established or kept within a period of one year 
thereafter, the court may, if satisfied of the good faith of the owner, order 
the building, structure, or place closed under the order of abatement to be 
delivered to said owner and the order of abatement suspended so far as it 
may relate to said property. 

(b) The release of the property under subsection (a) of this Code section 
shall not release it from any judgment lien, penalty, or liability to which it 
may be subject by law. (Ga. L. 1917, p. 177, § 7; Code 1933, § 72-311.) 



62 



41-3-10 PLACES USED FOR UNLAWFUL SEXUAL PURPOSES 41-3-10 

JUDICIAL DECISIONS 

"Owner." — The reference in § 41-3-7, to given buildings be closed pending further 

ownership of personalty by others than the order of the court, that the personal prop- 

"occupants," and the word "owner," as it erty therein be removed and sold, and that 

appears in this section, providing for bond, judgment be rendered against the defen- 

does not contemplate a situation in which dant and in favor of the state for $300.00, 

the owner is himself the party who main- with special lien on the premises as provided 

tained the nuisance. Carpenter v. State, 195 by law, the defendant, in paying the $300.00 

Ga. 434, 24 S.E.2d 404 (1943). and the cosl of the proce eding! would com- 

This section does not apply to an owner p i y with the judgment only in part, and 

who himself used the property for the pur- would not thereby acquire any right to a 

poses condemned by the statute, and against release of the rea]t or personalty from the 

whom as the actual offender the abatement order of abatement . Carpenter v. State, 195 

judgment was rendered. Carpenter v. State, Ga 4S4 24 s F „ d 404 / lq4 ax 

195 Ga. 434, 24 S.E.2d 404 (1943). ' * M ™ 4 {l ™ 5) ' 

Partial compliance with judgment. — 
Where in a final decree it was ordered that 

RESEARCH REFERENCES 

C.J.S. — 43A C.J.S., Injunctions, § 258. 

41-3-10. Issuance of permanent injunction; entry and enforcement of 
judgment; disposition of sums arising from enforcement of judg- 
ment. 

(a) Whenever a permanent injunction is issued against any person for 
maintaining a nuisance as described in Code Section 41-3-1 or against any 
owner of the building, structure, or place knowingly kept or used for the 
purposes prohibited by this chapter, the judge granting the injunction shall, 
at the same time, enter judgment against the person, firm, or corporation 
owning said building, structure, or place in the sum of $300.00; and said 
judgment shall be a special lien upon the premises complained of and the 
furniture and fixtures therein and shall as against the property rank from 
date with all other judgments or liens as provided by law. 

(b) The judgment provided for in subsection (a) of this Code section 
shall issue in the name of the state and be enforced as other judgments in 
this state. The lien of the judgment upon the property used for the purpose 
of maintaining the nuisance shall not relieve the person maintaining the 
nuisance or the owner of the building, structure, or place from any of the 
other penalties provided by law. 

(c) All sums arising from the enforcement of the judgment provided for 
in subsection (a) of this Code section shall be paid into the treasury of the 
county in which said judgment is entered and become part of the general 
funds of said county. (Ga. L. 1917, p. 177, § 8; Code 1933, § 72-312.) 



63 



41-3-11 NUISANCES 41-3-12 

JUDICIAL DECISIONS 

Knowledge by owner as to use of building, nent injunction and the penalty of the fine 

— Knowledge on the part of the owner that prescribed. Carpenter v. State, 195 Ga. 434, 

the premises were being used, or that the 24 S.E.2d 404 (1943). 

lessee when leasing the premises intended to The satisfaction of a money judgment only 

use the same, for the illegal purposes set in part would not affect the remainder or 

forth in the act, is essential in order to give a new right to the defendant. Carpenter 

subject the owner to the burden of a perma- v. State, 195 Ga. 434, 24 S.E.2d 404 (1943). 

41-3-11. Injunction binding throughout judicial circuit in which issued; 
violation of provisions of injunction deemed contempt. 

When an injunction is granted, it shall be binding on the defendant 
throughout the judicial circuit in which it is issued; and any violation of the 
provisions of the injunction shall be a contempt of court. (Ga. L. 1917, p. 
177, § 2; Code 1933, § 72-304.) 

RESEARCH REFERENCES 

Am. Jur. 2d. — 58 Am. Jur. 2d, Nuisances, dience as contempt, 148 ALR 1024. 

§ 357. Venue of suit to enjoin nuisance, 7 ALR2d 

C.J.S. — 43A C.J.S., Injunctions, § 242. 481. 

ALR. — Reversal, modification, dismissal, Use of affidavits to establish contempt, 79 

dissolution, or resetdement of injunction ALR2d 657. 
order or judgment as affecting prior disobe- 

41-3-12. Contempt proceedings; punishment for contempt of court. 

(a) In the event of the violation of any injunction granted under this 
chapter, the court may summarily try and punish the offender. The 
proceedings shall be commenced by filing with the clerk of the court an 
information, under oath, setting out the alleged facts constituting such 
violation, upon which the court or judge shall cause a warrant to be issued 
for the arrest of the offender. The trial may be had upon affidavits, or either 
party may demand the production and oral examination of witnesses. 

(b) A party found guilty of violating the provisions of an injunction shall 
be punished as for contempt in the discretion of the judge. (Ga. L. 1917, p. 
177, § 4; Code 1933, § 72-308.) 

RESEARCH REFERENCES 

Am. Jur. 2d. — 58 Am. Jur. 2d, Nuisances, dissolution, or resettlement of injunction 

§§ 367, 374, 376. order or judgment as affecting prior disobe- 

C.J.S. — 43A C.J.S., Injunctions, § 285 et dience as contempt, 148 ALR 1024. 

seq. 66 C.J.S., Nuisances, § 135. Use of affidavits to establish contempt, 79 

ALR. — Reversal, modification, dismissal, ALR2d 657. 

64 



41-3-13 PLACES USED FOR UNLAWFUL SEXUAL PURPOSES 41-3-13 

41-3-13. Abatement of nuisance by state courts and municipal courts of 
municipalities having population of 15,000 or more. 

In addition to the remedies provided for by Code Sections 41-3-2 through 
41-3-12, state courts and the municipal courts of municipalities having a 
population of 15,000 or more according to the United States decennial 
census of 1970 or any future such census, when the nuisance exists within 
the corporate limits of such municipalities, shall have jurisdiction to hear 
and determine the question of the existence of the nuisance defined by 
Code Section 41-3-1 and, if found to exist, to order its abatement, which 
order shall be directed to and executed by the sheriff or marshal of any such 
court or his deputy. (Code 1933, § 72-313, enacted by Ga. L. 1979, p. 1025, 
§ 2.) 



65 



TITLE 42 
PENAL INSTITUTIONS 

Chap. 1. General Provisions, 42-1-1 through 42-1-12. 

2. Board and Department of Corrections, 42-2-1 through 42-2-14. 

3. Georgia Building Authority (Penal), 42-3-1 through 42-3-32. 

4. Jails, 42-4-1 through 42-4-105. 

5. Correctional Institutions of State and Counties, 42-5-1 through 

42-5-101. 

6. Detainers, 42-6-1 through 42-6-25. 

7. Treatment of Youthful Offenders, 42-7-1 through 42-7-9. 

8. Probation, 42-8-1 through 42-8-130. 

9. Pardons and Paroles, 42-9-1 through 42-9-71. 

10. Correctional Industries, 42-10-1 through 42-10-5. 

11. Interstate Corrections Compact, 42-11-1 through 42-11-3. 

12. Prison Litigation Reform, 42-12-1 through 42-12-9. 



Cross references. — Securing of atten- 
dance of prisoners at trials, § 24-10-60 et 
seq. Furnishing of passenger motor vehicle 
to warden of Georgia State Prison at 
Reidsville, § 35-1-2. Criminal Justice Coordi- 



nating Council, Ch. 6A, T. 35. Power of 
municipal corporations to confine persons 
convicted of violating municipal ordinances, 
§ 36-30-8. 



67 



42-1-1 



PENAL INSTITUTIONS 

CHAPTER 1 



42-1-2 



GENERAL PROVISIONS 



Sec. 
42-1-1 



42-1-2. 



42-1-3. 



42-1-4. 

42-1-5. 
42-1-6. 



42-1-1 



Giving information to or receiv- 
ing money from inmate in penal 
institution. 

Reward for information leading 
to capture of escaped inmate of 
penal institution under jurisdic- 
tion of Board of Corrections. 
Defendant sentenced to death or 
life imprisonment not to be 
made trusty during time case on 
appeal; manner of confinement 
of defendant. 

Work-release programs for 
county prisoners. 
Use of inmate for private gain. 
Injury or contact by inmate pre- 
senting possible threat of trans- 



Sec. 



42-1-7. 



42-1-8. 
42-1-9. 



42-1-10. 



42-1-11. 



42-1-12. 



mission of communicable dis- 
ease. 

Notification to transporting law 
enforcement agency of inmate's 
or patient's infectious or com- 
municable disease. 
Home arrest program. 
Work-release, educational, and 
habilitative programs for county 
prisoners. 

Preliminary urine screen drug 
tests. 

Notification of crime victim of 
impending release of offender 
from imprisonment. 
Registration of sexually violent 
predators. 



Giving information to or receiving money from inmate in penal 
institution. 



(a) No employee of a penal institution may give advice to an inmate 
regarding the name or the employment of an attorney at law in any case 
where the inmate is confined in a penal institution or receive any sum of 
money paid as fees or otherwise to attorneys at law in a criminal case or 
cases against any inmate with which they may be connected in any capacity. 

(b) Any person who violates this Code section shall be guilty of a 
misdemeanor. (Ga. L. 1921, p. 243, §§ 3, 5; Code 1933, §§ 27-504, 
27-9903.) 

Cross references. — Solicitation on behalf 
of attorneys generally, § 15-19-55. 

RESEARCH REFERENCES 



Am. Jut. 2d. — 70 Am. Jur. 2d, Sheriffs, 
Police, and Constables, § 56. 

C.J.S. — 7A C.J.S., Attorney and Client, 
§ 150 et seq. 8 C.J.S., Bail, § 3. 



ALR. — Propriety of telephone testimony 
or hearings in prison proceedings, 9 ALRoth 
451. 



42-1-2. Reward for information leading to capture of escaped inmate of 
penal institution under jurisdiction of Board of Corrections. 

(a) Any person, other than a law enforcement officer, who furnishes 
information leading to the capture of an escaped inmate from a penal 



68 



'42-I-S GENERAL PROVISIONS 42-1-4 

institution under the jurisdiction of the Board of Corrections may receive a 
reward of up to $200.00 which shall be payable at the time the escaped 
inmate is returned to the custody of the Board of Corrections. The 
commissioner of corrections, at his discretion, may pay the reward to any 
person from funds appropriated or otherwise available to the Department 
of Corrections. 

(b) When more than one person furnishes information which would 
entitle them to receive the rewards pursuant to subsection (a) of this Code 
section, the reward shall be paid to the first person furnishing the 
information; and, if more than one person furnishes the information at the 
same time, the reward shall be prorated among all persons furnishing such 
information. (Code 1933, § 27-101.3, enacted by Ga. L. 1972, p. 574, § 1; 
Ga. L. 1982, p. 3, § 42; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1.) 

Cross references. — Criminal penalties mining felony, for information leading to 

relating to escape of persons from lawful identification of person who murders law 

custody, §§ 16-10-52, 16-10-53. Reward for enforcement officer, etc., §§ 45-12-35 

detection or apprehension of person com- through 45-12-37. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 67 Am. Jur. 2d, Rewards, tion leading to arrest and conviction of 

§§ 6-12, 22, 25, 27, 29. offenders, 100 ALR2d 573. 

ALR. — Construction of statute authoriz- Validity, construction, and application of 

frig public authorities to offer rewards for statutes regulating bail bond business, 13 

arrest and conviction of persons guilty of ALR3d 618. 

crime, 86 ALR 579. Knowledge of reward as condition of right 

Right to reward of furnisher of informa- thereto, 86 ALR3d 1142. 

42-1-3. Defendant sentenced to death or life imprisonment not to be made 
trusty during time case on appeal; manner of confinement of 
defendant. 

Any defendant who has been convicted of a felony and sentenced to 
death or life imprisonment shall not be made a trusty at any penal 
institution or facility in this state during the time that his case is on appeal. 
The defendant shall be confined in the same manner as other prisoners. 
(Ga. L. 1981, p. 1429, § 2.) 

Cross references. — Death penalty gener- 
ally, § 17-10-30 et seq. 

42-1-4. Work-release programs for county prisoners. 

(a) Any person sentenced to confinement as a county prisoner under 
paragraph (1) of subsection (a) of Code Section 17-10-3 or otherwise 
sentenced to confinement as a county prisoner may, if there is reasonable 
cause to believe that he will honor his trust, be allowed to participate in a 

69 



42-1-4 PENAL INSTITUTIONS 42-1-4 

work-release program as authorized by this Code section. Participation in a 
work-release program shall be voluntary on the part of the inmate. 

(b) When an inmate receives permission to participate in a work-release 
program, the limits of the place of the confinement of the inmate shall be 
expanded by allowing the inmate under prescribed conditions to work at 
paid employment or participate in a training program in the community 
while continuing as an inmate of the institution to which he is committed. 
The willful failure of an inmate to remain within the extended limits of his 
confinement or to return within the prescribed time to the institution shall 
constitute an escape from the institution and shall be punished as provided 
in Code Section 16-10-52. 

(c) If there is reasonable cause to believe that an inmate will honor his 
trust, the inmate may be authorized to participate in a work-release 
program by: 

(1) The sentencing judge at the time of sentencing; or 

(2) The sheriff, warden, or other official in charge of the institution to 
which the inmate is committed if written approval is obtained from the 
sentencing judge. 

(d) An inmate authorized to participate in a work-release program under 
this Code section shall comply with all rules and regulations promulgated 
by the institution in which he is confined relative to the handling, 
disbursement, and holding in trust of all funds earned by the inmate while 
under the jurisdiction of the institution. An amount determined to be the 
cost of the inmate's keep and confinement shall be deducted from the 
earnings of each inmate, and such amount shall be deposited in the 
treasury of the county. After deduction for keep and confinement the 
official in charge of the institution shall: 

(1) Allow the inmate to draw from the balance a reasonable sum to 
cover his incidental expenses; 

(2) Retain to the inmate's credit an amount as deemed necessary to 
accumulate a reasonable sum to be paid to him on his release from the 
institution; and 

(3) Cause to be paid any additional balance as is needed for the 
support of the inmate's dependents. 

(e) No inmate participating in a work-release program under this Code 
section shall be deemed to be an agent, employee, or involuntary servant of 
the county while working or participating in training or going to and from 
his place of employment or training. (Code 1981, § 42-1-4, enacted by Ga. 
L. 1985, p. 1259, § 1.) 



70 



42-1-5 GENERAL PROVISIONS 42-1-5 

Cross references. — Work-release, educa- 1259, § 1 and Ga. L. 1985, p. 1483, § 1 

tional, and habilitative programs for county enacted a Code Section 42-1-4. The former 

prisoners, § 42-1-9. has been set out as Code Section 42-1-4 and 

Editor's notes. — Both Ga. L. 1985, p. the latter as Code Section 42-1-5. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and C.J.S. — 72 C.J.S., Prisons and Rights of 

Correctional Institutions, § 159. Prisoners, §§ 40, 59. 

42-1-5. Use of inmate for private gain. 

(a) As used in this Code section, the term: 

(1) "Custodian" means a warden, sheriff, jailer, deputy sheriff, police 
officer, or any other law enforcement officer having actual custody of an 
inmate. 

(2) "Inmate" means any person who is lawfully incarcerated in a penal 
institution. 

(3) "Penal institution" means any place of confinement for persons 
accused of or convicted of violating a law of this state or an ordinance of 
a political subdivision of this state. 

(b) It shall be unlawful for a custodian of an inmate of a penal institution 
to use such inmate or allow such inmate to be used for any purpose 
resulting in private gain to any individual. 

(c) Any person who violates subsection (b) of this Code section shall be 
guilty of a misdemeanor. 

(d) This Code section shall not apply to: 

(1) Work on private property because of natural disasters; 

(2) Work or other programs or releases which have the prior approval 
of the board or commissioner of corrections; 

(3) Community service work programs; or 

(4) Work-release programs. (Code 1981, § 42-1-4, enacted by Ga. L. 
1985, p. 1483, § 1; Ga. L. 1991, p. 94, § 42.) 

Code Commission notes. — Both Ga. L. paragraph (2) of subsection (d). Pursuant to 

1985, p. 1259 and Ga. L. 1985, p. 1483 Code Section 28-9-5, this Code section has 

enacted a Code Section 42-1-4. Additionally, been renumbered Code Section 42-1-5 and 

Ga. L. 1985, p. 1483 contained "board or "offender rehabilitation" changed to "cor- 

commissioner of offender rehabilitation" in reckons." 



71 



42-1-6 PENAL INSTITUTIONS 42-1-7 

JUDICIAL DECISIONS 

Cited in Smith v. Deering, 880 F. Supp. 
816 (S.D. Ga. 1994). 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, § 162 et seq. 

42-1-6. Injury or contact by inmate presenting possible threat of transmis- 
sion of communicable disease. 

If any inmate of any state or county correctional institution, county or 
municipal jail, or other similar facility, while such inmate is in custody or in 
the process of being taken into custody, injures or has injured or contacts or 
has contacted a law enforcement officer, correctional officer, fireman, 
emergency medical technician, or other person in such a manner as to 
present a possible threat of transmission of a communicable disease to the 
person so injured or contacted, then the warden, jailer, or other official 
having charge of such inmate may take all reasonable steps to determine 
whether the inmate has a communicable disease capable of being transmit- 
ted by the injury or contact involved. Such steps may include, but shall not 
be limited to, any appropriate medical examination of or collection of 
medical specimens from the inmate. In the event an inmate refuses to 
cooperate in any such procedures, the warden, jailer, or other official may 
apply to the superior court of the county for an order authorizing the use 
of any degree of force reasonably necessary to complete such procedures. 
Upon a showing of probable cause that the injury presents the threat of 
transmission of a communicable disease, the court shall issue an order 
authorizing the petitioner to use reasonable measures to perform any 
medical procedures reasonably necessary to ascertain whether a communi- 
cable disease has been transmitted. In addition to any other grounds 
sufficient to show probable cause for the issuance of such an order, such 
probable cause may be conclusively established by evidence of the injury or 
contact in question and a statement by a licensed physician that the nature 
of the injury or contact is such as to present a threat of transmission of a 
communicable disease if the inmate has such a disease. The cost of any 
procedures carried out under this Code section shall be borne by the 
jurisdiction having custody of the inmate. (Code 1981, § 42-1-6, enacted by 
Ga. L. 1987, p. 1446, § 1.) 

42-1-7. Notification to transporting law enforcement agency of inmate's or 
patient's infectious or communicable disease. 

(a) For the purposes of this Code section, the term "infectious or 
communicable disease" shall include infectious hepatitis, tuberculosis, 

72 



42-1-8 GENERAL PROVISIONS 42-1-8 

influenza, measles, chicken pox, meningitis, HIV as denned in Code 
Section 31-22-9.1, or any venereal disease enumerated in Code Section 
31-17-1. 

(b) Notwithstanding any other provision of law, any state or county 
correctional institution, municipal or county detention facility, or any 
facility as defined in Code Section 37-3-1 shall notify any state or local law 
enforcement agency required to transport an inmate or patient if such 
inmate or patient has been diagnosed as having an infectious or commu- 
nicable disease. Notification shall be limited to the fact that such inmate or 
patient has an infectious or communicable disease and whether such 
disease is airborne or transmissible by blood or other body fluids; provided, 
however, that the specific disease shall not be disclosed. The Department of 
Human Resources shall provide a guide for appropriate precautions to be 
taken by any person or persons transporting such inmate or patient and 
shall develop a form to be used for the purpose of ensuring that such 
precautions are taken. 

(c) Information released or obtained pursuant to this Code section shall 
be privileged and confidential and shall only be released or obtained by the 
institutions, facilities, or agencies who are parties to the transportation of 
the patient or inmate. Any person making an unauthorized disclosure of 
such information shall be guilty of a misdemeanor. (Code 1981, § 42-1-7, 
enacted by Ga. L. 1991, p. 1319, § 1.) 

Code Commission notes. — Ga. L. 1991, Section 28-9-5, Ga. L. 1991, p. 1348, § 1, has 

p. 1319, § 1, Ga. L. 1991, p. 1348, § 1, and been renumbered as Code Section 42-1-8 

Ga. L. 1991, p. 1352, § 1, all purport to and Ga. L. 1991, p. 1352, § 1, has been 

enact Code Section 42-1-7. Pursuant to Code renumbered as Code Section 42-1-9. 

42-1-8. Home arrest program. 

(a) As used in this Code section, the term: 

(1) "Educational program" means a program of learning recognized 
by the State Board of Education. 

(2) "Habilitative program" means and includes an alcohol or drug 
treatment program, mental health program, family counseling, commu- 
nity service, or any other community program ordered or approved by 
the court having jurisdiction over the offender or by the sheriff. 

(3) "Home arrest" means an electronic monitoring of an offender at 
a residence approved and accepted by the court, the sheriff, or the 
director or administrator of the home arrest program. 

(b) Notwithstanding the provisions of Code Section 42-1-4, any person 
who is confined in a county jail (1) after conviction and sentencing, (2) 
pending completion of a presentencing report, or (3) after return for a 
violation of the terms of probation may, in the discretion of the sheriff and 

73 



42-1-8 PENAL INSTITUTIONS 42-1-8 

subject to the eligibility requirements set forth in subsection (d) of this 
Code section, be assigned to a home arrest program under supervision of 
the sheriff. If it appears to the court that an offender subject to its 
jurisdiction is a suitable candidate for a home arrest program, the court 
may, subject to the eligibility requirements of subsection (d) of this Code 
section, order the offender to a home arrest program. Further, the sheriff 
or the court may authorize the offender to participate in educational or 
other habilitative programs designed to supplement home arrest. 

(c) Whenever the sheriff assigns an offender to home arrest, the court 
which sentenced such offender or before which such offender's case is 
pending shall be notified in writing by the sheriff or the director or 
administrator of the home arrest program to which the offender is assigned 
of the offender's place of employment and the location of any educational 
or habilitative program in which the offender participates. The court, in its 
discretion, may revoke the authority for any offender to participate in home 
arrest, whether such offender was assigned to home arrest by the court or 
the sheriff. The sheriff or home arrest director or administrator may enter 
into an agreement to accept into the local home arrest program offenders 
who are sentenced to home arrest or who have met all home arrest 
standards. 

(d) In order to qualify for assignment to a home arrest program, an 
offender: 

(1) May not be subject to any outstanding warrants or orders from any 
other court or law enforcement agency; 

(2) Shall not have any criminal record or any history within the 
preceding five years of any assaultive offenses of an aggravated nature, 
including, but not limited to, aggravated assault; aggravated battery; rape; 
child molestation; robbery; trafficking or distribution of a controlled 
substance or marijuana; homicide by vehicle; felony bail-jumping; or 
escape; or 

(3) May not have any life-threatening illnesses or disabilities that 
would interfere with the ability to work on a regular schedule. 

(e) An offender's employment under this Code section shall be with a 
legitimate, recognized, and established employer. An offender assigned to a 
home arrest program who, without proper authority, leaves his home or the 
work area to which he is assigned, who leaves or fails to attend an assigned 
educational or other rehabilitative program, or who leaves the vehicle or 
route of travel in going to or returning from his assigned place of work shall 
be guilty of a misdemeanor. If the offender leaves the county or the area of 
restriction, he may be found guilty of escape under Code Section 16-10-52. 
An offender who is found guilty of a misdemeanor under this subsection or 
of escape shall be ineligible for further participation in a home arrest 
program during his current term of confinement. 

74 



42-1-8 GENERAL PROVISIONS 42-1-8 

(f ) Any wages earned by an offender in home arrest under this Code 
section may, upon order of the court or the sheriff, be paid to the director 
or administrator of the home arrest program after standard payroll 
deductions required by federal or state law have been withheld. Distribution 
of such wages shall be made for the following purposes: 

(1) To defray the cost of home arrest electronic monitoring equip- 
ment and supervision provided by the local jail or detention center, or to 
pay for any damage to the monitoring equipment in the offender's 
possession or the failure to return the equipment to the program; 

(2) To pay travel and other such expenses of the offender necessitated 
by his home arrest employment or participation in an educational or 
rehabilitative program; 

(3) To provide support and maintenance for the offender's depen- 
dents or to make payments to the local department of family and children 
services or probation, as appropriate, on behalf of any offender's 
dependents receiving public assistance; 

(4) To pay any fines, restitution, or other costs ordered by the court; 
and 

(5) Any balance remaining after payment of costs and expenses listed 
in paragraphs (1) through (4) of this subsection shall be retained to the 
credit of the offender and shall be paid to him upon release from 
confinement. 

(g) No offender participating in home arrest pursuant to this Code 
section shall be deemed to be an agent, employee, or involuntary servant of 
the county while working or participating in educational or other 
habilitative programs or while traveling to or from the place of employ- 
ment. 

(h) Local jails shall qualify for compensation for costs of incarceration of 
all persons pursuant to this Code section, less any payments from the 
offender pursuant to subsection (f) of this Code section. (Code 1981, 
§ 42-1-8, enacted by Ga. L. 1991, p. 1348, § 1.) 

Code Commission notes. — Ga. L. 1991, and Ga. L. 1991, p. 1352, § 1, has been 

p. 1319, § 1, Ga. L. 1991, p. 1348, § 1, and renumbered as Code Section 42-1-9. 

Ga. L. 1991, p. 1352, § 1, all purport to Law reviews. — For note on 1991 enact- 

enact Code Section 42-1-7. Pursuant to Code ment of this Code section, see 8 Ga. St. U.L. 

Section 28-9-5, Ga. L. 1991, p. 1348, § 1, has R ev . 155 (1992). 
been renumbered as Code Section 42-1-8 



75 



42-1-9 PENAL INSTITUTIONS 42-1-9 

42-1-9. Work-release, educational, and habilitative programs for county 
prisoners. 

(a) As used in this Code section, the term: 

(1) "Educational program" means a program of learning recognized 
by the State Board of Education. 

(2) "Habilitative program" means and includes an alcohol or drug 
treatment program, mental health program, family counseling, commu- 
nity service, or any other community program ordered or approved by 
the court having jurisdiction over the offender or by the sheriff. 

(3) "Work release" means full-time employment or participation in an 
acceptable and suitable vocational training program. 

(b) Notwithstanding the provisions of Code Section 42-1-4, any person 
who is confined in a county jail (1) after conviction and sentencing, (2) 
pending completion of a presentencing report, or (3) after return for a 
violation of the terms of probation may, in the discretion of the sheriff and 
subject to the eligibility requirements set forth in subsection (d) of this 
Code section, be assigned to a work-release program under supervision of 
the sheriff. If it appears to the court that an offender subject to its 
jurisdiction is a suitable candidate for a work-release program, the court 
may, subject to the eligibility requirements of subsection (d) of this Code 
section, order the offender to a work-release program. Further, the sheriff 
or the court may authorize the offender inmate to participate in educa- 
tional or other habilitative programs designed to supplement work release. 

(c) Whenever the sheriff assigns an inmate to work release, the court 
which sentenced such offender or before which such offender's case is 
pending shall be notified in writing by the sheriff or the director or 
administrator of the work-release program to which the offender is assigned 
of the offender's place of employment and the location of any educational 
or habilitative program in which the offender participates. The court, in its 
discretion, may revoke the authority for any inmate to participate in work 
release, whether such inmate was assigned to work release by the court or 
the sheriff. The sheriff or work-release director or administrator may enter 
into an agreement to accept into the local work-release program inmates 
who are sentenced to work release or who have met all work-release 
standards. 

(d) In order to qualify for assignment to a work-release program, an 
offender: 

( 1 ) May not be subject to any outstanding warrants or orders from any 
other court or law enforcement agency; 

(2) Shall not have any criminal record or any history within the 
preceding five years of any assaultive offenses of an aggravated nature, 

76 



42-1-9 GENERAL PROVISIONS 42-1-9 

including, but not limited to, aggravated assault; aggravated battery; rape; 
child molestation; robbery; trafficking or distribution of a controlled 
substance or marijuana; homicide by vehicle; felony bail-jumping; or 
escape; or 

(3) May not have any life-threatening illnesses or disabilities that 
would interfere with the ability to work on a regular schedule. 

(e) An inmate's employment under this Code section shall be with a 
legitimate, recognized, and established employer. An inmate assigned to a 
work-release program who, without proper authority, leaves the work area 
or site to which he is assigned, who leaves or fails to attend an assigned 
educational or other rehabilitative program, or who leaves the vehicle or 
route of travel in going to or returning from his assigned place of work shall 
be guilty of a misdemeanor. An offender who is found guilty of misde- 
meanor escape in accordance with this subsection shall be ineligible for 
further participation during his current term of confinement. 

(f ) Any wages earned by an inmate in work release under this Code 
section may, upon order of the court or the sheriff, be paid to the director 
or administrator of the work-release program after standard payroll deduc- 
tions required by federal or state law have been withheld. Distribution of 
such wages shall be made for the following purposes: 

(1) To defray the cost of the inmate's keep, confinement, and super- 
vision, which sums shall be paid into the general treasury; 

(2) To pay travel and other such expenses of the inmate necessitated 
by his work-release employment or participation in an educational or 
rehabilitative program; 

(3) To provide support and maintenance for the inmate's dependents 
or to make payments to the local department of family and children 
services or probation, as appropriate, on behalf of any inmate's depen- 
dents receiving public assistance; 

(4) To pay any fines, restitution, or other costs ordered by the court; 
and 

(5) Any balance remaining after payment of costs and expenses listed 
in paragraphs (1) through (4) of this subsection shall be retained to the 
credit of the inmate and shall be paid to him upon release from 
confinement. 

(g) No inmate participating in work release pursuant to this Code 
section shall be deemed to be an agent, employee, or involuntary servant of 
the county while working or participating in educational or other 
habilitative programs or while traveling to or from the place of employ- 
ment. 

(h) Local jails shall qualify for compensation for costs of incarceration of 
all persons pursuant to this Code section, less any payments from the 

77 



42-1-10 PENAL INSTITUTIONS 42-1-10 

inmate pursuant to subsection (f) of this Code section. (Code 1981, 
§ 42-1-9, enacted by Ga. L. 1991, p. 1352, § 1.) 

Cross references. — Work-release pro- "work release program" in three places in 

grams for county prisoners, § 42-1-4. subsection (b), twice in subsection (c), in 

Code Commission notes. — Ga. L. 1991, subsections (d) and (e), in the introductory 

p. 1319, § 1, Ga. L. 1991, p. 1348, § 1, and language of subsection (f), and in para- 

Ga. L. 1991, p. 1352, § 1, all purport to graph (2) of subsection (f); and 

enact Code Section 42-1-7. Pursuant to Code "work-release" was substituted for "work 

Section 28-9-5, Ga. L. 1991, p. 1348, § 1, has release" preceding "director" and "stan- 

been renumbered as Code Section 42-1-8 dards" in subsection (c). 

and Ga. L. 1991, p. 1352, § 1, has been La W reviews. — For note on 1991 enact- 

renumbered as Code Section 42-1-9. ment of this Code section see 8 Ga St tj L 

Pursuant to Code Section 28-9-5, in 1991, ^ ev jg- (1992) 
"work-release program" was substituted for 

42-1-10. Preliminary urine screen drug tests. 

(a) Any probation officer, parole officer, or other official or employee of 
the Department of Corrections who supervises any person covered under 
the provisions of paragraphs (1) through (7) of this subsection shall be 
exempt from the provisions of Chapter 22 of Title 31 for the limited 
purposes of administering a preliminary urine screen drug test to any 
person who is: 

(1) Incarcerated; 

(2) Released as a condition of probation for a felony or misdemeanor; 

(3) Released as a condition of conditional release; 

(4) Released as a condition of parole; 

(5) Released as a condition of provisional release; 

(6) Released as a condition of pretrial release; or 

(7) Released as a condition of control release. 

(b) The Department of Corrections and the State Board of Pardons and 
Paroles shall develop a procedure for the performance of preliminary urine 
screen drug tests in accordance with the manufacturer's standards for 
certification. Probation officers, parole officers, or other officials or employ- 
ees of the Department of Corrections who are supervisors of any person 
covered under paragraphs (1) through (7) of subsection (a) of this Code 
section shall be authorized to perform preliminary urine screen drug tests 
in accordance with such procedure. Such procedure shall include instruc- 
tions as to a confirmatory test by a licensed clinical laboratory where 
necessary. (Code 1981, § 42-1-10, enacted by Ga. L. 1992, p. 3234, § 1.) 

78 



42-1-1 1 GENERAL PROVISIONS 42-1-1 1 

42-1-1 1 . Notification of crime victim of impending release of offender from 
imprisonment. 

(a) As used in this Code section, the term: 

(1) "Crime" means an act committed in this state which constitutes 
any violation of Chapter 5 of Title 16, relating to crimes against persons; 
Chapter 6 of Title 16, relating to sexual offenses; Article 1 or Article 3 of 
Chapter 7 of Tide 16, relating to burglary and arson; or Article 1 or 
Article 2 of Chapter 8 of Title 16, relating to offenses involving theft and 
armed robbery. 

(2) "Crime against the person or sexual offense" means any crime 
provided for in Chapter 5 or 6 of Title 16. 

(3) "Custodial authority" means the commissioner of corrections if 
the offender is in the physical custody of the state, or the sheriff if the 
offender is incarcerated in a county jail, or the warden if the offender is 
incarcerated in a county correctional institution. 

(4) "Offender" means a person sentenced to a term of incarceration 
in a state or county correctional institution. 

(b) If the identity of a victim of a crime has been verified by the 
prosecuting attorney, who has, at the request of such victim, mailed a letter 
to the custodial authority requesting that the victim be notified of a change 
in the custodial status of an offender, then the custodial authority shall 
make a good faith effort to notify the victim that the offender is to be 
released from imprisonment, including release on extended furlough; 
transferred to work release; released by mandatory release upon expiration 
of sentence; or has escaped from confinement; or if the offender has died. 
The good faith effort to notify the victim must occur prior to the release or 
transfer noted in this subsection. For a victim of a felony crime against the 
person or sexual offense for which the offender was sentenced to a term of 
imprisonment of more than 18 months, the good faith effort to notify the 
victim must occur no later than ten days before the offender's release from 
imprisonment, transfer to or release from work release, or as soon 
thereafter as is practical in situations involving emergencies. 

(c) The notice given to a victim of a crime against a person or sexual 
offense must include the conditions governing the offender's release or 
transfer and either the identity of the corrections agent or the county 
officer who will be supervising the offender's release or a means to identify 
the agency that will be supervising the offender's release. The custodial 
authority complies with this Code section upon mailing the notice of 
impending release to the victim at the address which the victim has most 
recently provided to the custodial authority in writing. 

(d) If an offender escapes from imprisonment or incarceration, includ- 
ing from release on extended furlough or work release, the custodial 

79 



42-1-11 



PENAL INSTITUTIONS 



42-1-11 



authority shall make all reasonable efforts to notify a victim who has 
requested notice of the offender's release under subsection (b) of this Code 
section within six hours after discovering the escape, or as soon thereafter 
as is practical, and shall also make reasonable efforts to notify the victim 
within 24 hours after the offender is apprehended or as soon thereafter as 
is practical. In emergencies, telephone notification for the victim will be 
attempted and the results documented in the offender's central file. 

(e) All identifying information regarding the victim, including the 
victim's request and the notice provided by the custodial authority, shall be 
confidential and accessible only to the victim. It is the responsibility of the 
victim to provide the custodial authority with a current address. 

(f ) A designated official in the Department of Corrections, the county 
correctional facility, and the sheriff's office shall coordinate the receipt of 
all victim correspondence and shall monitor staff responses to requests for 
such notification from victims of crime. 

(g) The custodial authority shall not be liable for a failure to notify the 
victim. (Code 1981, § 42-1-11, enacted by Ga. L. 1993, p. 1278, § 1; Ga. L. 
1995, p. 385, § 3.) 



The 1995 amendment, effective July 1, 
1995, in subsection (a), deleted former para- 
graph (1), relating to the definition of "com- 
missioner", and redesignated former para- 
graphs (2) and (3) as present paragraphs (1) 
and (2); in present paragraph (1), deleted 
"a crime as defined by state or federal law 
and which results in physical injury or death 
to the victim" and added the language be- 
ginning "any violation of Chapter 5"; in 
present paragraph (2), inserted "or sexual 
offense" and "or 6"; added present para- 
graph (3) and deleted former paragraph 
(5), relating to the definition of "victim"; in 
subsection (b), substituted "prosecuting at- 
torney" for "district attorney", substituted 
"custodial authority" for "commissioner of 
corrections" and "commissioner of correc- 
tions or the commissioner's designee", re- 
spectively, in the first sentence, inserted "or 
sexual offense" near the beginning and a 
comma following "release" near the end of 
the third sentence; rewrote subsection (c); 
in subsection (d), deleted "commissioner or 
other" preceding "custodial" near the be- 



ginning; in subsection (e), substituted "cus- 
todial authority" for "commissioner or the 
commissioner's designee" and "commis- 
sioner", respectively; inserted ", the county 
correctional facility, and the sheriff's office" 
in subsection (f ); and substituted "custodial 
authority" for "commissioner and the De- 
partment of Corrections" in subsection (g). 

Editor's notes. — Section 2 of Ga. L. 1993, 
p. 1278, not codified by the General Assem- 
bly, provided that this Code section shall 
become effective six months after the effec- 
tive date of an appropriations Act containing 
a specific appropriation to fund the provi- 
sions of this Act. Partial funding was pro- 
vided by the General Assembly at the 1995 
session. Additional funding was approved by 
the General Assembly at the 1997 session. 
Additional funding was appropriated by the 
General Assembly at the 1997 session. 

Law reviews. — For note on 1993 enact- 
ment of this section, see 10 Ga. St. U.L. Rev. 
176 (1993). For note on the 1995 amend- 
ment of this Code section, see 12 Ga. St. U.L. 
Rev. 158 (1995). 



80 



42-1-12 GENERAL PROVISIONS 42-1-12 

42-1-12. Registration of sexually violent predators. 

(a) As used in this Code section, the term: 

(1) "Appropriate state official" means: 

(A) With respect to an offender who is sentenced to probation 
without any sentence of incarceration in the state prison system, the 
sentencing court; 

(B) With respect to an offender who is sentenced to a period of 
incarceration in a prison under the jurisdiction of the Department of 
Corrections and who is subsequently released from prison or placed on 
probation, the commissioner of corrections or his or her designee; and 

(C) With respect to an offender who is placed on parole, the 
chairperson of the State Board of Pardons and Paroles or his or her 
designee. 

(2) "Board" means the Sexual Offender Registration Review Board. 

(3) "Conviction" includes a final judgment of conviction entered 
upon a verdict or finding of guilty of a crime or upon a plea of guilty. 
Unless otherwise required by federal law, a defendant who is discharged 
without adjudication of guilt and who is not considered to have a criminal 
conviction pursuant to Article 3 of Chapter 8 of this title, relating to first 
offenders, shall not be subject to the registration requirements of this 
Code section. 

(4) (A) "Criminal offense against a victim who is a minor" means any 
criminal offense under Title 16 or any offense under federal law or the 
laws of another state or territory of the United States which consists of: 

(i) Kidnapping of a minor, except by a parent; 

(ii) False imprisonment of a minor, except by a parent; 

(iii) Criminal sexual conduct toward a minor; 

(iv) Solicitation of a minor to engage in sexual conduct; 

(v) Use of a minor in a sexual performance; 

(vi) Solicitation of a minor to practice prostitution; or 

(vii) Any conduct that by its nature is a sexual offense against a 
minor. 

(B) For purposes of this paragraph, conduct which is criminal only 
because of the age of the victim shall not be considered a criminal 
offense if the perpetrator is 18 years of age or younger. 

(5) "Mental abnormality" means a congenital or acquired condition 
of a person that affects the emotional or volitional capacity of the person 

81 



42-1-12 PENAL INSTITUTIONS 42-1-12 

in a manner that predisposes that person to the commission of criminal 
sexual acts to a degree that makes the person a menace to the health and 
safety of other persons. 

(6) "Predatory" means an act directed at a stranger or a person with 
whom a relationship has been established or promoted for the primary 
purpose of victimization. 

(7) "Sexually violent offense" means a conviction for violation of 
Code Section 16-6-1, relating to rape; Code Section 16-6-2, relating to 
aggravated sodomy; Code Section 16-6-4, relating to aggravated child 
molestation; Code Section 16-6-22.1, relating to sexual battery; or Code 
Section 16-6-22.2, relating to aggravated sexual battery; or an offense that 
has as its element engaging in physical contact with another person with 
intent to commit such an offense; or a conviction in a federal court or 
court of another state or territory for any offense which under the laws of 
this state would be classified as a violation of a Code section listed in this 
paragraph. 

(8) "Sexually violent predator" means a person who has been con- 
victed on or after July 1, 1996, of a sexually violent offense and who 
suffers from a mental abnormality or personality disorder or attitude that 
places the person at risk of perpetrating any future predatory sexually 
violent offenses. 

(b) (1) (A) (i) On and after July 1, 1996, a person who is convicted of 
a criminal offense against a victim who is a minor or who is convicted 
of a sexually violent offense shall register his or her name and 
current address; place of employment, if any; the crime of which 
convicted; and the date released from prison or placed on parole, 
supervised release, or probation with the Georgia Bureau of Inves- 
tigation for the time period specified in paragraph (1) of subsection 
(g) of this Code section. 

(ii) A person who has previously been convicted of a criminal 
offense against a victim who is a minor or who has previously been 
convicted of a sexually violent offense and who is released from 
prison or placed on parole, supervised release, or probation on or 
after July 1, 1996, shall register his or her name and current address; 
place of employment, if any; the crime of which convicted; and the 
date released from prison or placed on parole, supervised release, or 
probation with the Georgia Bureau of Investigation for the time 
period specified in paragraph (1) of subsection (g) of this Code 
section. 

(B) A person who is a sexually violent predator shall register the 
information required under subparagraph (A) of this paragraph with 
the Georgia Bureau of Investigation until such requirement is termi- 
nated under paragraph (2) of subsection (g) of this Code section. 

82 



42-1-12 GENERAL PROVISIONS 42-1-12 

(2) (A) A determination that a person is a sexually violent predator 
and a determination that a person is no longer a sexually violent 
predator shall be made by the sentencing court after receiving a report 
by the Sexual Offender Registration Review Board. 

(B) The Sexual Offender Registration Review Board shall be com- 
posed of three professionals licensed under Title 43 and knowledge- 
able in the field of the behavior and treatment of sexual offenders. The 
members of such board shall be appointed by the commissioner of 
human resources for terms of four years with initial terms commencing 
September 1, 1996. After the initial terms specified in this subpara- 
graph, members of the board shall take office on the first day of 
September immediately following the expired term of that office and 
shall serve for a term of four years and until the appointment of their 
respective successors. No member shall serve on the board more than 
two consecutive terms. Vacancies occurring on the board, other than 
those caused by expiration of a term of office, shall be filled in the same 
manner as the original appointment to the position vacated for the 
remainder of the unexpired term and until a successor is appointed. 
Members shall be entitled to an expense allowance and travel cost 
reimbursement the same as members of certain other boards and 
commissions as provided in Code Section 45-7-21. 

(C) Upon a determination that an offender is guilty of a sexually 
violent offense, the court may request a report from the Sexual 
Offender Registration Review Board as to the likelihood that the 
offender suffers from a mental abnormality or personality disorder that 
would make the person likely to engage in a predatory sexually violent 
offense. The report shall be requested as a matter of course for any 
offender with a history of sexually violent offenses. The court shall 
provide the Sexual Offender Registration Review Board with any 
information available to assist the board in rendering an opinion. The 
board shall have 60 days from receipt of the court's request to respond 
with its report. Within 60 days of receiving the report, the court shall 
issue a ruling as to whether or not the offender shall be classified as a 
sexually violent predator. If the court determines the offender to be a 
sexually violent predator, such fact shall be communicated in writing to 
the appropriate state official and to the Georgia Bureau of Investiga- 
tion. 

(D) An offender who has been determined to be a sexually violent 
predator and who is required to register under this Code section may 
make application to the board to have such registration requirements 
terminated on the grounds that such person no longer suffers from a 
mental abnormality or personality disorder that would make the 
person likely to engage in a predatory sexually violent offense. Such an 
application may be made by the offender and heard by the board only 

83 



42-1-12 PENAL INSTITUTIONS 42-1-12 

after the offender has been released on parole or probation or from 
incarceration for a period of three years and not more than once every 
two years thereafter. If the board determines that such offender should 
no longer be classified as a sexually violent predator, such information 
shall be forwarded to the sentencing court, where a final decision on 
the matter shall be rendered. If the court concurs with the board's 
recommendation, such information shall be forwarded to the Georgia 
Bureau of Investigation and the registration requirements of subpara- 
graph (B) of paragraph (1) of this subsection shall no longer apply to 
such offender; provided, however, that an individual who is no longer 
deemed a sexually violent predator shall be required to register under 
subparagraph (A) of paragraph (1) of this subsection for the time 
period specified in paragraph (1) of subsection (g) of this Code 
section. If such a determination is not made by the court to terminate 
the registration requirements, the offender shall be required to 
continue to comply with the registration requirements of subparagraph 
(B) of paragraph (1) of this subsection. 

(3) (A) If a person who is required to register under this Code section 
is released from prison or placed on parole, supervised release, or 
probation, the appropriate state official shall: 

(i) Inform the person of the duty to register and obtain the 
information required under subparagraph (A) of paragraph (1) of 
this subsection for such registration; 

(ii) Inform the person that, if the person changes residence 
address, the person shall give the new address to the Georgia Bureau 
of Investigation not later than ten days after the change of address; 

(iii) Inform the person that, if the person changes residence to 
another state, the person shall register the new address with the 
Georgia Bureau of Investigation, and that the person shall also 
register with a designated law enforcement agency in the new state 
not later than ten days after establishing residence in the new state 
if the new state has a registration requirement; 

(iv) Obtain fingerprints and a photograph of the person if such 
fingerprints and photograph have not already been obtained in 
connection with the offense that triggered the initial registration; 
and 

(v) Require the person to read and sign a form stating that the 
duty of the person to register under this Code section has been 
explained. 

(B) In addition to the requirements of subparagraph (A) of this 
paragraph, for a person required to register under subparagraph (B) 
of paragraph (1) of this subsection, the appropriate state official shall 

84 



42*1-12 GENERAL PROVISIONS 42-1-12 

i 
obtain the name of the person; descriptive physical and behavioral 

information to assist law enforcement personnel in identifying the 
person; known current or proposed residence addresses of the person; 
place of employment, if any; offense history of the person; and 
documentation of any treatment received for any mental abnormality 
or personality disorder of the person; provided, however, that the 
appropriate state official shall not be required to obtain any informa- 
tion already on the criminal justice information system of the Georgia 
Crime Information Center. 

(C) The Georgia Crime Information Center shall create criminal 
justice information system network transaction screens by which ap- 
propriate state officials shall enter original data required by this Code 
section. Screens shall also be created for sheriffs' offices for the entry 
of record confirmation data, changes of residence, employment or 
other pertinent data, and to assist in offender identification. 

(D) Any person changing residence from another state or territory 
of the United States to Georgia who is required to register under 
federal law or the laws of another state or territory or who has been 
convicted of an offense in another state or territory which would 
require registration under this Code section if committed in this state 
shall comply with the registration requirements of this Code section. 
Such person shall register the new address with the designated law 
enforcement agency with whom the person last registered, and the 
person shall register with the Georgia Bureau of Investigation not later 
than ten days after the date of establishing residency in this state. The 
Georgia Bureau of Investigation shall obtain any needed information 
concerning the registrant, including fingerprints and a photograph of 
the person if such fingerprints and photograph have not already been 
obtained in connection with the offense that resulted in the initial 
registration requirement. In addition, the Georgia Bureau of Investi- 
gation shall inform the person of the duty to report any change of 
address as otherwise required in this Code section. The Georgia 
Bureau of Investigation shall forward such information in the manner 
described in subsection (c) of this Code section. 

(c) The appropriate state official shall, within three days after receipt of 
information described in paragraph (3) of subsection (b) of this Code 
section, forward such information to the Georgia Bureau of Investigation. 
Once the data is entered into the criminal justice information system by the 
appropriate state official or sheriff, the Georgia Crime Information Center 
shall immediately notify the sheriff of the county where the person expects 
to reside. The Georgia Bureau of Investigation shall also immediately 
transmit the conviction data and fingerprints to the Federal Bureau of 
Investigation. It shall be the duty of the sheriff of each county within this 
state to maintain a register of the names and addresses of all offenders 

85 



42-1-12 PENAL INSTITUTIONS 42-1-12 

whose names have been provided by the Georgia Bureau of Investigation to 
the sheriff under this Code section. The Georgia Bureau of Investigation 
shall establish operating policies and procedures concerning record own- 
ership, quality, verification, modification, and cancellation and shall per- 
form mail out and verification duties on a quarterly basis. The Georgia 
Bureau of Investigation shall send each month criminal justice information 
system network messages to sheriffs listing offenders due for verification. 
The bureau shall also create a photo image file from original entries and 
provide such entries to sheriffs to assist in offender identification and 
verification. 

(d) (1) For a person required to register under subparagraph (b)(1)(A) 
of this Code section, on each anniversary of the person's initial registra- 
tion date during the period in which the person is required to register 
under this Code section the following applies: 

(A) The Georgia Bureau of Investigation shall mail a 
nonforwardable verification form to the last reported address of the 
person; 

(B) The person shall be required as a condition of parole or 
probation to respond directly to the sheriff within ten days after receipt 
of the form; 

(C) The verification form stating that the person still resides at the 
address last reported to the Georgia Bureau of Investigation shall be 
signed by the person and retained by the sheriff; and 

(D) If the person fails to respond directly to the sheriff within ten 
days after receipt of the form, the person shall be in violation of this 
Code section unless the person proves that he or she has not changed 
the residence address. 

(2) The provisions of paragraph (1) of this subsection shall be applied 
to a person required to register under subparagraph (b)(1)(B) of this 
Code section, except that such person must verify the registration every 
90 days after the date of the initial release on probation by the court or 
the initial release by the Department of Corrections or commencement 
of parole. 

(e) A change of address by a person required to register under this Code 
section reported to the Georgia Bureau of Investigation shall be immedi- 
ately reported to the sheriff of the county where the person resides. The 
Georgia Bureau of Investigation shall, if the person changes residence to 
another state, notify the law enforcement agency with which the person 
must register in the new state if the new state has a registration requirement. 

(f) A person who has been convicted of an offense which requires 
registration under this Code section shall register the new address with a 
designated law enforcement agency in another state to which the person 

86 



42-1-12 GENERAL PROVISIONS 42-1-12 

moves not later than ten days after such person establishes residence in the 
new state if the new state has a registration requirement. 

(g) (1) A person required to register under subparagraph (b)(1)(A) of 
this Code section shall continue to comply with this Code section until 
ten years have elapsed since the person was released from prison or 
placed on parole, supervised release, or probation. 

(2) The requirement of a person to register under subparagraph 
(b)(1)(B) of this Code section shall terminate upon a determination, 
made in accordance with paragraph (2) of subsection (b) of this Code 
section, that the person no longer suffers from a mental abnormality or 
personality disorder that would make the person likely to engage in a 
predatory sexually violent offense. 

(h) Any person who is required to register under this Code section and 
who fails to comply with the requirements of this Code section or who 
provides false information shall be guilty of a misdemeanor; provided, 
however, that upon the conviction of the third or subsequent offense under 
this subsection, the defendant shall be guilty of a felony and shall be 
punished by imprisonment for not less than one nor more than three years. 

(i) The information collected under the state registration program shall 
be treated as private data except that: 

(1) Such information may be disclosed to law enforcement agencies 
for law enforcement purposes; 

(2) Such information may be disclosed to government agencies con- 
ducting confidential background checks; 

(3) The Georgia Bureau of Investigation or any sheriff maintaining 
records required under this Code section shall release relevant informa- 
tion collected under this Code section that is necessary to protect the 
public concerning those persons required to register under this Code 
section, except that the identity of a victim of an offense that requires 
registration under this Code section shall not be released. In addition to 
any other notice that may be necessary to protect the public, nothing 
herein shall prevent any sheriff from posting this information in any 
public building; and 

(4) It shall be the responsibility of the sheriff maintaining records 
required under this Code section to enforce the criminal provisions of 
this Code section. The sheriff may request the assistance of the Georgia 
Bureau of Investigation upon his or her discretion. 

(j) Law enforcement agencies, employees of law enforcement agencies, 
members of the Sexual Offender Registration Review Board, and state 
officials shall be immune from liability for good faith conduct under this 
Code section. 

87 



42-1-12 



PENAL INSTITUTIONS 



42-1-12 



(k) The provisions of this Code section shall be in addition to and not in 
lieu of the provisions of Code Section 42-9-44.1, relating to conditions for 
parole of sexual offenders. 

(1) The Board of Public Safety is authorized to promulgate rules and 
regulations necessary for the Georgia Bureau of Investigation and the 
Georgia Crime Information Center to implement and carry out the 
provisions of this Code section. (Code 1981, § 42-1-12, enacted by Ga. L. 
1996, p. 1520, § 1; Ga. L. 1997, p. 143, § 42; Ga. L. 1997, p. 380, § 1.) 



Effective date. — This Code section be- 
came effective July 1, 1996. 

The 1997 amendments. — The first 1997 
amendment, effective March 28, 1997, part 
of an Act to correct errors and omissions in 
the Code, substituted "subparagraph (A) of 
paragraph (1) of this subsection" for "sub- 
paragraph (b)(1)(A)" in division (b)(3)(A)(i) 
and revised language in subsection (c) . The 
second 1997 amendment, effective July 1, 
1997, in subsection (a), substituted "or any 
offense under federal law or the laws of 
another state or territory of the United 
States which" for "of this Code that" in 
subparagraph (A) of paragraph (4); and 
substituted "any offense" for "a felony of- 
fense" near the end of paragraph (7); de- 
leted "of this Code" following "Tide 43" in 
the first sentence of subparagraph (b)(2)(B); 
in subparagraph (b)(2)(D), inserted "sub- 
paragraph (B) of paragraph (1)" in two 
places, substituted "subsection" for "Code 
section" in two places, and inserted "; pro- 
vided, however, that an individual who is no 
longer deemed a sexually violent predator 
shall be required to register under subpara- 
graph (A) of paragraph (1) of this subsec- 
tion for the time period specified in para- 



graph (1) of subsection (g) of this Code 
section" at the end of the fourth sentence; 
in subparagraph (b)(3)(A), substituted 
"Georgia Bureau of Investigation" for "sher- 
iff with whom the person last registered" in 
divisions (b)(3)(A)(ii) and (b)(3)(A)(iii), sub- 
stituted "subparagraph (A) of paragraph (1) 
of this subsection" for "subparagraph 
(b)(1)(A)" in division (b)(3)(A)(i), and 
added "not later than ten days after the 
change of address" at the end of division 
(b)(3)(A)(ii) ; added subparagraph 

(b)(3)(D); and, in the first sentence in para- 
graph (3) of subsection (i), substituted 
"shall release" for "is authorized to re- 
lease", substituted "those persons" for "a 
specific person", and added the second sen- 
tence. 

Code Commission notes. — Pursuant to 
Code Section 28-9-5, in 1996, "Sexual Of- 
fender Registration Review Board" was sub- 
stituted for "Sex Offender Registration Re- 
view Board" in the first and third sentences 
of subparagraph (b)(2)(C) and in subsection 

Law reviews. — For review of 1996 depart- 
ment of corrections legislation, see 13 Ga. U. 
L. Rev. 257. 



88 



42-2-1 



BOARD AND DEPARTMENT OF CORRECTIONS 

CHAPTER 2 



42-2-1 



BOARD AND DEPARTMENT OF CORRECTIONS 



Sec. 

42-2-1. Definitions. 

42-2-2. Board members, officers, 
records, and compensation. 

42-2-3. Board meetings. 

42-2-4. Department created. 

42-2-5. Administrative functions of de- 
partment. 

42-2-5.1. Special school district for school 
age youth; education programs 
for adult offenders. 

42-2-6. Office of commissioner created; 
general duties; appointment; 
compensation. 

42-2-7. Duties of commissioner relating 
to department retirements. 

42-2-8. Additional duties of commis- 
sioner. 



Sec. 
42-2-9. 



42-2-10. 



42-2-11. 



42-2-12. 



42-2-13. 



42-2-14. 



Selection of department person- 
nel; establishment and mainte- 
nance of roster of employees. 
Office of board, commissioner, 
and staff. 

Powers and duties of board; 
adoption of rules and regula- 
tions. 

Reasonableness of rules and reg- 
ulations. 

Grants to municipal corpora- 
tions and counties for local jails 
and correctional institutions. 
Power of Governor to declare 
state of emergency with regard to 
jail and prison overcrowding. 



Editor's notes. — Ga. L. 1985, p. 283, § 1 
changed the name of the Department of 
Offender Rehabilitation, the Board of Of- 
fender Rehabilitation, and the commis- 
sioner of offender rehabilitation to the De- 
partment of Corrections, the Board of 
Corrections, and the commissioner of cor- 
rections, respectively, and amended sections 
throughout the Code to conform to the 
change. Section 2 of that Act, not codified by 
the General Assembly, provided as follows: 



"For administrative convenience, equip- 
ment and supplies bearing the name Board 
of Offender Rehabilitation, Department of 
Offender Rehabilitation, or commissioner of 
offender rehabilitation may be used by the 
Board of Corrections, Department of Cor- 
rections, or commissioner of corrections as 
if such equipment or supplies bore the name 
Board of Corrections, Department of Cor- 
rections, or commissioner of corrections." 



RESEARCH REFERENCES 



Am. Jut. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, §§21, 22. 

42-2-1. Definitions. 



C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, §§ 14-19. 



As used in this chapter, the term: 

(1) "Board" means the Board of Corrections. 

(2) "Commissioner" means the commissioner of corrections. 

(3) "Department" means the Department of Corrections. (Ga. L. 
1982, p. 3, § 42; Ga. L. 1985, p. 283, § 1.) 



89 



42-2-2 PENAL INSTITUTIONS 42-2-2 

42-2-2. Board members, officers, records, and compensation. 

(a) On and after July 1, 1983, the board shall consist of one member 
from each congressional district in the state and five additional members 
from the state at large. All members shall be appointed by the Governor, 
subject to confirmation by the Senate. The initial terms of members shall be 
as follows: two members representative of congressional districts and one 
at-large member shall be appointed for a term ending July 1, 1984; two 
members representative of congressional districts and one at-large member 
shall be appointed for a term ending July 1, 1985; two members represen- 
tative of congressional districts and one at-large member shall be appointed 
for a term ending July 1, 1986; two members representative of congressional 
districts and one at-large member shall be appointed for a term ending July 
1, 1987; and two members representative of congressional districts and one 
at-large member shall be appointed, for a term ending July 1, 1988. 
Thereafter, all members appointed to the board by the Governor shall be 
appointed for terms of five years and until their successors are appointed 
and qualified. In the event of a vacancy during the term of any member by 
reason of death, resignation, or otherwise, the appointment of a successor 
by the Governor shall be for the remainder of the unexpired term of such 
member. 

(b) The first members appointed under this Code section shall be 
appointed for terms which begin July 1, 1983. The members of the board 
serving on April 1, 1983, shall remain in office until their successors are 
appointed and qualified. 

(c) The board shall annually elect one of its members as chairman and 
shall elect from its membership a secretary of the board. The secretary of 
the board shall keep adequate records and minutes of all business and 
official acts of the board. Records of the board shall be maintained in the 
office of the commissioner. 

(d) Each member of the Board of Corrections shall receive the sum 
provided for by Code Section 45-7-21 for each day of actual attendance at 
meetings of the board and for each day of travel as a member of a 
committee of the board. In addition, upon recommendation by the 
chairman or the board, each member shall receive for out-of-state travel 
actual expenses incurred in connection therewith and reimbursement for 
actual transportation costs while traveling by public carrier or the legal 
mileage rate for the use of a personal automobile in connection with such 
attendance. Such sums, expenses, and costs shall be paid from funds 
appropriated or otherwise available to the Department of Corrections. (Ga. 
L. 1956, p. 161, § 8; Ga. L. 1983, p. 507, § 2; Ga. L. 1984, p. 22, § 42; Ga. 
L. 1986, p. 179, § 1.) 

Editor's notes. — Section 1 ofGa. L. 1983, this Act to implement certain changes re- 
p. 507 provides as follows: "It is the intent of quired by Article III, Section VI, Paragraph 

90 



42-2-3 BOARD AND DEPARTMENT OF CORRECTIONS 42-2-5 

IV, subparagraph (b) of the Constitution of 
the State of Georgia." 

42-2-3. Board meetings. 

The board shall meet once each month in the office of the commissioner, 
unless in the discretion of a majority of the board it is necessary or 
convenient to meet elsewhere to carry out the duties of the board. Special 
meetings may be held at such times and places as shall be specified by the 
call of the chairman of the board or by the commissioner. The secretary of 
the board shall give written notice of the time and place of all meetings of 
the board to each member of the board and to the commissioner. Meetings 
of the board shall be open to the public. However, the board may hold 
executive sessions pursuant to Chapter 14 of Title 50 whenever it, in its 
discretion, deems advisable. Eight members of the board shall constitute a 
quorum for the transaction of business. (Ga. L. 1956, p. 161, § 7; Ga. L. 
1987, p. 457, § 1.) 

42-2-4. Department created. 

There is created the Department of Corrections. (Ga. L. 1972, p. 1069, 
§ 9; Ga. L. 1985, p. 283, § 1.) 

OPINIONS OF THE ATTORNEY GENERAL 

Liability for probationers' injuries. — Nei- to supervise probationers while they are 
ther the state, and particularly the Depart- performing approved court-ordered tasks 
ment of Offender Rehabilitation (Correc- under §§ 42-8-71, 42-8-72, and 42-8-73 are 
tions) and its employees in their official performing a governmental function as op- 
capacities, may incur liability as a result of a posed to a ministerial task, and therefore will 
probationer injured while performing not be personally liable for injuries to the 
court-ordered community service work ex- probationers sustained while performing 
cept to the extent permitted by § 28-5-85. r me tasks unless the employees' conduct is 
1983 Op. Att'y Gen. No. 83-18. willful an d wanton. 1983 Op. Att'y Gen. No. 

Department of Offender Rehabilitation 83-18. 
(Corrections) employees, authorized by law 

RESEARCH REFERENCES 

Am. Jut. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, § 21. 

42-2-5. Administrative functions of department. 

The department shall administer the state's correctional institutions and 
the rehabilitative programs conducted therein. (Ga. L. 1972, p. 1069, § 15; 
Ga. L. 1978, p. 1647, § 4.) 

91 



42-2-5.1 PENAL INSTITUTIONS 42-2-5.1 

Administrative rules and regulations. — tions of State of Georgia, Rules of Georgia 
Institutional, center, and program services, Board of Offender Rehabilitation, Chapters 
Official Compilation of Rules and Regula- 415-4-1 through 415-4-7. 

OPINIONS OF THE ATTORNEY GENERAL 

Collection of child support payments. — 18 and 21 when such payments arise out of 

The Department of Offender Rehabilitation court orders in existence prior to July 1, 

(Corrections) should collect child support 1972. 1972 Op. Att'y Gen. No. U72-40. 
payments for individuals between the ages of 

42-2-5.1. Special school district for school age youth; education programs 
for adult offenders. 

(a) In order to provide education for any school age youths incarcerated 
within any facility of the Department of Corrections, the department shall 
be considered a special school district which shall be given the same 
funding consideration for federal funds that school districts within the state 
are given. The special school district under the department shall have the 
powers, privileges, and authority exercised or capable of exercise by any 
other school district. The schools within the special school district shall be 
under the control of the commissioner, who shall serve as the superinten- 
dent of schools for such district. The Board of Corrections shall serve as the 
board of education for such district. The board, acting alone or in 
cooperation with the State Board of Education, shall establish education 
standards for the district. As far as is practicable, such standards shall adhere 
to the standards adopted by the State Board of Education for the education 
of school age youth, while taking into account: 

(1) The overriding security needs of correctional institutions and 
other restrictions inherent to the nature of correctional facilities; 

(2) The effect of limited funding on the capability of the Department 
of Corrections to meet certain school standards; and 

(3) Existing juvenile education standards of the Correctional Educa- 
tion Association and the American Correctional Association, which shall 
be given primary consideration where any conflicts arise. 

(b) The effect of subsection (a) of this Code section shall not be to 
provide state funds to the special school district under the department 
through Part 4 of Article 6 of Chapter 2 of Title 20. 

(c) The Board of Corrections, acting alone or in cooperation with the 
State Board of Technical and Adult Education or other relevant education 
agencies, shall provide overall direction of educational programs for adult 
offenders in the correctional system and shall exercise program approval 
authority. The board may enter into written agreements with other educa- 
tional organizations and agencies in order to provide adult offenders with 
such education and employment skills most likely to encourage gainful 

92 



42-2-6 BOARD AND DEPARTMENT OF CORRECTIONS 42-2-6 

employment and discourage return to criminal activity upon release. The 
board may also enter into agreements with other educational organizations 
and agencies to attain program certification for its vocational and technical 
education programs. (Code 1981, § 42-2-5.1, enacted by Ga. L. 1995, p. 357, 
§ 1.) 

Effective date. — This Code section be- 
came effective April 7, 1995. 

42-2-6. Office of commissioner created; general duties; appointment; com- 
pensation. 

(a) There is created the position of commissioner of corrections. The 
commissioner shall be the chief administrative officer of the department. 
Subject to the general policy established by the board, the commissioner 
shall supervise, direct, account for, organize, plan, administer, and execute 
the functions vested in the department by this title. 

(b) The commissioner shall be appointed by and shall serve at the 
pleasure of the board. The salary, expenses, and allowances of the commis- 
sioner shall be as set by statute. (Ga. L. 1972, p. 1069, § 11; Ga. L. 1978, p. 
1647, § 2; Ga. L. 1985, p. 283, § 1.) 

JUDICIAL DECISIONS 

Cited in Busbee v. Reserve Ins. Co., 147 Roulain, 159 Ga. App. 233, 283 S.E.2d 89 
Ga. App. 451, 249 S.E.2d 279 (1978); State v. (1981). 

OPINIONS OF THE ATTORNEY GENERAL 

Duty to maintain records of tort actions. Designation of places for carrying out 

— The commissioner of offender rehabilita- execution. — Present law limits the place of 

tion (corrections) should maintain any execution only to penal institutions other 

records related to possible tort action for at than the old prison farm in Baldwin County, 

least two years after a possible tort occurs. The commissioner is authorized to designate 

1972 Op. Att'y Gen. No. 72-75. any such penal institution as the place for 

Penal institution in Georgia is any facility carrying out an execution. 1980 Op. Att'y 

used to punish criminal offenders. 1980 Op. Gen. No. 80-121. 
Att'y Gen. No. 80-121. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and 93-97, 223, 298-304, 431-434, 448-453. 
Correctional Institutions^ 21. 63A Am. Jur. C.J.S. — 67 C.J.S., Officers, §§219, 

2d, Public Officers and Employees, §§ 26, 223-227. 



93 



42-2-7 PENAL INSTITUTIONS 42-2*<8 

42-2-7. Duties of commissioner relating to department retirements. 

The commissioner shall act for the department for and in compliance to 
any retirement provisions for the employees and officials of the department. 
(Ga. L. 1961, p. 124, § 1.) 

42-2-8. Additional duties of commissioner. 

The commissioner shall direct and supervise all the administrative 
activities of the board and shall attend all meetings of the board. The 
commissioner shall also make, publish, and furnish to the General Assembly 
and to the Governor annual reports regarding the work of the board, along 
with such special reports as he or she may consider helpful in the 
administration of the penal system or as may be directed by the board. The 
commissioner shall perform such other duties and functions as are neces- 
sary or desirable to carry out the intent of this chapter and which he or she 
may be directed to perform by the board. The commissioner or the 
commissioner's designee shall be authorized to make and execute contracts 
and all other instruments necessary or convenient for the acquisition of 
professional and personal employment services and for the leasing of real 
property. Subject to legislative appropriations, the commissioner shall also 
be authorized to make and execute any contract for the land acquisition, 
design, construction, operation, maintenance, use, lease, or management 
of a state correctional institution or for any services pertaining to the 
custody, care, and control of inmates or other functions as are related to the 
discharge of these responsibilities and to designate any person or organi- 
zation with whom the commissioner contracts as a law enforcement unit 
under paragraph (7) of Code Section 35-8-2. (Ga. L. 1956, p. 161, § 9; Ga. 
L. 1958, p. 413, § 1; Ga. L. 1962, p. 689, § 1; Ga. L. 1966, p. 121, § 1; Ga. 
L. 1988, p. 1448, § 1; Ga. L. 1996, p. 691, § 1.) 

The 1996 amendment, effective April 8, sioner's" for "his" in the fourth sentence; 
1996, inserted "or she" in the second and and added the last sentence, 
third sentences; substituted "the commis- 

JUDICIAL DECISIONS 

Cited in State v. MacDougall, 139 Ga. App. serve Ins. Co., 147 Ga. App. 451, 249 S.E.2d 
815, 229 S.E.2d 667 (1976); Busbee v. Re- 279 (1978). 

OPINIONS OF THE ATTORNEY GENERAL 

Determination of mental disease and whether or not an inmate is mentally dis- 

transt'er to mental hospital. — This section, eased and should be transferred to a state 

and §§ 42-2-9, 42-2-11 and 42-5-52 indicate mental hospital. 1968 Op. Att'y Gen. No. 

that the director (now commissioner) of 68-136. 
corrections is authorized to determine 

94 



42-2-9 BOARD AND DEPARTMENT OF CORRECTIONS 42-2-10 

42-2-9. Selection of department personnel; establishment and maintenance 
of roster of employees. 

The commissioner is authorized to appoint and employ such clerical 
force as is necessary to carry on the administration of the penal system. He 
may also employ such experts and technical help as are needed, along with 
assistants to the commissioner, wardens, superintendents, guards, and other 
employees necessary for the operation of the state operated institutions 
where inmates are confined. The commissioner shall establish and maintain 
in his office a complete roster of all employees in his office and in each of 
the various institutions operating under the authority of the board. (Ga. L. 
1956, p. 161, § 10; Ga. L. 1984, p. 940, § 1.) 

OPINIONS OF THE ATTORNEY GENERAL 

Determination of mental disease and Duty of selecting and employing wardens 
transfer to mental hospital. — This section, is vested exclusively in Board of Corrections 
and §§ 42-2-8, 42-2-11, and 42-5-52 indicate and the director (now commissioner) 
that the director (now commissioner) of thereof; the board and its director (now 
corrections is authorized to determine commissioner) are to exercise their in- 
whether or not an inmate is mentally dis- formed and expert judgment in selecting 
eased and should be transferred to a state and discharging such officials, and any con- 
mental hospital. 1968 Op. Att'y Gen. No. tract or agreement whereby they seek to 
68-136. divest themselves of that discretion, power, 

Wardens are employees of state or coun- anc j judgment is void as being contrary to 
ties. — The law provides for two types of public policy. 1958-59 Op. Att'y Gen. p. 241 
wardens: those at "state-operated institu- (rendered prior to 1984 amendment), 
tions" under this section, and those "ap- Supplementing employee salaries. — De- 
pointed by the governing authority of the partment of offender Rehabilitation (Cor- 
county" under § 42-5-30; a person cannot rections) may supplement salaries of teach- 
be a warden within the state penal system ers at G ia industrial Institute who are 
unless he is an employee either of the state ided b local board of education. 1962 
or a county authorized to maintain a county U ^. ^ en ^ 
correctional institution under the supervi- "' 
sion of the Board of Corrections. 1973 Op. 
Att'y Gen. No. 73-72. 

RESEARCH REFERENCES 

C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, § 15. 

42-2-10. Office of board, commissioner, and staff. 

The executive office of the board and the commissioner shall be located 
in the City of Atlanta, and suitable quarters shall be assigned to the board 
and the commissioner and to his staff of employees. (Ga. L. 1956, p. 161, 
§ 27.) 



95 



42-2-11 PENAL INSTITUTIONS 42-241 

JUDICIAL DECISIONS 

Cited in Busbee v. Reserve Ins. Co., 147 
Ga. App. 451, 249 S.E.2d 279 (1978). 

42-2-11. Powers and duties of board; adoption of rules and regulations. 

(a) The board shall establish the general policy to be followed by the 
department and shall have the duties, powers, authority, and jurisdiction 
provided for in this title or as otherwise provided by law. 

(b) The board is authorized to adopt, establish, and promulgate rules 
and regulations governing the transaction of the business of the penal 
system of the state by the department and the commissioner and the 
administration of the affairs of the penal system in the different penal 
institutions coming under its authority and supervision and shall make the 
institutions as self-supporting as possible. 

(c) The board shall adopt rules governing the assignment, housing, 
working, feeding, clothing, treatment, discipline, rehabilitation, training, 
and hospitalization of all inmates coming under its custody. 

(d) The board shall also adopt rules and regulations governing the 
conduct and the welfare of the employees of the state institutions operating 
under its authority and of the county correctional institutions and correc- 
tional facilities or programs operating under its supervision. It shall 
prescribe the working hours and conditions of work for employees in the 
office of the commissioner and in institutions operating under the authority 
of the board. 

(e) The board shall also adopt rules and regulations governing the 
negotiation and execution of any contract for the land acquisition, design, 
construction, operation, maintenance, use, lease, or management of a state 
correctional institution or for any services pertaining to the custody, care, 
and control of inmates or other functions as are related to the discharge of 
these responsibilities. 

(f ) The board shall adopt rules: 

(1) Providing for the transfer to a higher security facility of each 
inmate who commits battery or aggravated assault against a correctional 
officer while in custody; provided, however, that this provision shall not 
apply in instances where the inmate is already incarcerated in a maximum 
security facility; and 

(2) Specifying the procedures for offering department assistance to 
employees who are victims of battery or aggravated assault by inmates in 
filing criminal charges or civil actions against their assailants, including 
procedures for posting notices that such assistance is available to any 
employee who is subjected to battery or aggravated assault by an inmate, 
but not including legal representation of such employees. 

96 



42-2-11 



BOARD AND DEPARTMENT OF CORRECTIONS 



42-2-11 



(g) All rules and regulations adopted pursuant to this Code section shall 
be adopted, established, promulgated, amended, repealed, filed, and 
published in accordance with the applicable provisions and procedure as 
set forth in Chapter 13 of Title 50, the "Georgia Administrative Procedure 
Act." The courts shall take judicial notice of any such rules or regulations. 

(h) As used in this Code section, the words "rules and regulations" shall 
have the same meaning as the word "rule" is defined in paragraph (6) of 
Code Section 50-13-2. (Ga. L. 1956, p. 161, § 11; Ga. L. 1969, p. 598, § 1; 
Ga. L. 1978, p. 1647, § 1; Ga. L. 1983, p. 3, §§ 31, 60; Ga. L. 1983, p. 507, 
§ 3; Ga. L. 1996, p. 691, § 2; Ga. L. 1996, p. 726, § 1.) 



The 1996 amendments. — The first 1996 
amendment, effective April 8, 1996, added 
present subsection (e) and redesignated 
former subsections (e) and (f) as subsec- 
tions (f) and (g), respectively. The second 
1996 amendment, effective July 1, 1996, 
added subsection (f). 

Code Commission notes. — Pursuant to 
Code Section 28-9-5, in 1996, subsection (g) 
as enacted by Ga. L. 1996, p. 726, § 1, was 
redesignated as subsection (f) and subsec- 
tions (f ) and (g) as enacted by Ga. L. 1996, 
691, § 2, were redesignated as subsections 
(g) and (h), respectively. 



Editor's notes. — Section 1 of Ga. L. 1983, 
p. 507 provides as follows: "It is the intent of 
this Act to implement certain changes re- 
quired by Article III, Section VI, Paragraph 
IV, subparagraph (b) of the Constitution of 
the State of Georgia." 

Law reviews. — For note, "Behind Closed 
Doors: An Empirical Inquiry Into the Nature 
of Prison Discipline in Georgia," see 8 Ga. L. 
Rev. 919 (1974). For review of 1996 depart- 
ment of corrections legislation, see 13 Ga. St. 
U. L. Rev. 253. 



JUDICIAL DECISIONS 



Authority for rules regarding drug testing. 

— A rule authorizing the warden to "direct 
and manage" employees does not encom- 
pass the authority to order employees to 
submit to random drug testing. Any rule 
regarding drug testing of the employees of a 
penal institution operating under the au- 
thority of the Board of Corrections must be 
promulgated by the board rather than by the 
warden of the institution. Department of 
Cors. v. Colbert, 260 Ga. 255, 391 S.E.2d 759 
(1990). 

Liability of warden for torts of inmates. — 
Warden of a public works camp (now county 
correctional institution) will not be held 
liable for torts of convicts on mere averment 
that he was negligent "in permitting said 
convicts to roam the roads of this county and 
state in a truck, without any guard," whereby 
injuries resulted from a collision of the truck 
with the plaintiff's car, as it was discretionary 
with the warden to determine how and in 
what manner convicts employed outside the 
confines of the camp (now county correc- 
tional institution) doing work in connection 



with its operation should be suffered to go at 
large, and wardens acting in a discretionary 
capacity will not be liable unless guilty of 
willfulness, fraud, malice, or corruption, or 
unless they knowingly act wrongfully, and 
not according to their honest convictions of 
duty. Price v. Owen, 67 Ga. App. 58, 19 
S.E.2d 529 (1942) (decided under former 
Code 1933, §§ 77-307, 77-311, and 77-313 
prior to revision by Ga. L. 1956, p. 101). 

Procedure for inmate to contest rules as 
to treatment. — The complaint by an inmate 
of the invalidity of one or more of the 
department's rules, or for failure to apply 
and abide by one or more of the depart- 
ment's rules, or for violation of one or more 
of the department's rules, with respect to 
treatment, discipline, or conditions of con- 
finement of the inmate must be asserted in 
an action against the director of the depart- 
ment of corrections (now commissioner of 
corrections), and such action must assert 
that administrative procedures provided by 
the department for the correction of such 
alleged complaints have been exhausted 



97 



42-2-12 



PENAL INSTITUTIONS 



42-2-12 



prior to the filing of the action. Brown v. 
Caldwell, 231 Ga. 795, 204 S.E.2d 137 
(1974). 

Injunctions against Board of Commission- 
ers. — An injunction will not lie against the 
prison commissioners (now Board of Cor- 
rections) where it interferes with their du- 
des. Southern Mining Co. v. Lowe, 105 Ga. 



352, 31 S.E. 191 (1898). 

Cited in Irwin v. Arrendale, 117 Ga. App. 
1, 159 S.E.2d 719 (1967); Wilkes County v. 
Arrendale, 227 Ga. 289, 180 S.E.2d 548 
(1971); Patterson v. MacDougall, 506 F.2d 1 
(5th Cir. 1975); Conklin v. Zant, 202 Ga. 
App. 528, 414 S.E.2d 741 (1992). 



OPINIONS OF THE ATTORNEY GENERAL 



Applicability to "state prisoners." — This 
section and § 42-5-57 relate to "state prison- 
ers," rather than "county prisoners"; the 
distinction between "state" and "county" 
prisoners continues in effect even though 
both may be confined in a county work camp 
(now county correctional institution). 1970 
Op. Att'y Gen. No. U70-134. 

Use of profits generated in penal or cor- 
rectional institution store. — The Board of 
Corrections can use the profits generated in 
a prison store to offset the expense of em- 
ploying an athletic director to direct the 
athletic activities of inmates, by withdrawing 
such sums from the prison athletic fund and 
depositing the same in the treasury of the 
Board of Corrections. 1969 Op. Att'y Gen. 
No. 69-314. 

Board authorized to develop service-type 
industrial programs. — The Board of Cor- 
rections is authorized to develop service-type 
industrial programs such as furniture refin- 
ishing, but such programs may not be devel- 
oped by the Georgia Prison Industries Ad- 



ministration (now Georgia Correctional 
Industries Administration). 1970 Op. Att'y 
Gen. No. 70-156. 

Prison may farm county property and 
share crop with county. — The Board of 
Corrections may enter into an agreement 
with a county whereby the county gives the 
prison a crop allotment and allows the 
prison to farm county property, furnishing 
the fertilizer and equipment for gathering 
the crop, and in return for which the county 
is to receive a portion of the crop grown on 
the property, with the remainder to be con- 
sumed within the prison branch. 1970 Op. 
Att'y Gen. No. 70-83. 

Determination of mental disease and 
transfer to mental hospital. — This section, 
and §§ 42-2-8, 42-2-9, and 42-5-52 indicate 
that the director (now commissioner) of 
corrections is authorized to determine 
whether or not an inmate is mentally dis- 
eased and should be transferred to a state 
mental hospital. 1968 Op. Att'y Gen. No. 
68-136. 



RESEARCH REFERENCES 

C.J.S. — 73 C.J.S., Public Administrative 
Law and Procedure, §§ 87-91, 103, 108, 109, 
111-114. 

42-2-12. Reasonableness of rules and regulations. 

All rules and regulations enacted by the board under the authority of this 
chapter must be reasonable. (Ga. L. 1956, p. 161, § 12.) 



JUDICIAL DECISIONS 



Cited in Irwin v. Arrendale, 117 Ga. App. 
1, 159 S.E.2d 719 (1967); Wilkes County v. 
Arrendale, 227 Ga. 289, 180 S.E.2d 548 



(1971); Brown v. Caldwell, 231 Ga. 795, 204 
S.E.2d 137 (1974); Jones v. Townsend, 267 
Ga. 489, 480 S.E.2d*24 (1997). 



98 



42-2-13 BOARD AND DEPARTMENT OF CORRECTIONS 42-2-14 

RESEARCH REFERENCES 

C.J.S. — 73 C.J.S., Public Administrative legal" mail, 47 ALR3d 1192. 

Law and Procedure, § 92 et seq. Validity and construction of prison regu- 

ALR. — Censorship of convicted prison- lation of inmates' possession of personal 

ers' "legal" mail, 47 ALR3d 1 150. property, 66 ALR4th 800. 

Censorship of convicted prisoners' " non- 
42-2-1 3. Grants to municipal corporations and counties for local jails and 
correctional institutions. 

(a) The commissioner may make grants of funds to municipal corpora- 
tions and counties for establishing, constructing, and operating local jails 
and correctional institutions. Any such grant shall be in addition to, and not 
in lieu of, state payments made pursuant to Code Section 42-5-51 and Code 
Section 42-5-53. The commissioner shall make such grants where the 
recipient, sum, and purpose have been specified by appropriation. From 
funds generally available for such grants, but when such funds are available 
without specification other than general purpose, the commissioner shall 
allocate such funds according to criteria established by the commissioner, 
including, but not limited to, overpopulation, innovativeness, efficiency, 
multigovernment involvement, and readiness. 

(b) Pursuant to Article VII, Section III, Paragraph III of the Constitution 
and as otherwise may be authorized, all grants similar to grants provided for 
in subsection (a) of this Code section made by the department before 
March 15, 1988, are ratified, confirmed, and approved. (Code 1981, 
§ 42-2-13, enacted by Ga. L. 1988, p. 256, § 1; Ga. L. 1989, p. 14, § 42; Ga. 
L. 1990, p. 8, § 42.) 

42-2-14. Power of Governor to declare state of emergency with regard to 
jail and prison overcrowding. 

The Governor, upon certification by the commissioner of corrections and 
approval by the director of the Office of Planning and Budget that the 
population of the prison system of the State of Georgia has exceeded the 
capacity of the prison system for any period of 90 consecutive days, 
beginning at any time after December 31, 1988, may declare a state of 
emergency with regard to jail and prison overcrowding. Following the 
declaration of such emergency, the department may establish additional 
facilities for use by the department, such facilities to be either of a 
permanent type of construction or of a temporary or movable type as the 
department may find most advantageous to the particular needs, to the end 
that the inmates under its supervision may be so distributed throughout the 
state as to facilitate individualization of treatment designed to prepare them 
for lawful living in the community where they are most likely to reside after 
their release from a correctional facility. For this purpose, the department 

99 



42-2-14 PENAL INSTITUTIONS 42-2-14 

may purchase or lease sites and suitable lands and erect necessary buildings 
thereon or purchase or lease existing facilities, all within the limits of 
appropriations as approved by the General Assembly. With the approval of 
the Governor, provisions, other than bonding requirements, of Chapter 3 of 
this title, known as the "Georgia Building Authority (Penal) Act," provi- 
sions of Chapter 5 of Title 50, relating to the Department of Administrative 
Services, or provisions of Code Section 50-6-25 or Chapter 22 of Title 50, 
relating to control over acquisition of professional services, may be waived 
by the department to facilitate the rapid construction or procurement of 
facilities for inmates; provided, however, that the authority to waive 
provisions of Code Section 50-6-25 shall terminate as of July 1, 1991. During 
any year in which correctional facilities are constructed or procured under 
this Code section and any requirements are waived, the department shall 
furnish the Governor and the General Assembly with a detailed report 
specifying the facilities constructed or procured, the requirements waived, 
and the reasons therefor. (Code 1981, § 42-2-14, enacted by Ga. L. 1989, p. 
57, § 1; Ga. L. 1990, p. 135, § 1.) 

Law reviews. — For note on 1989 enact- 
ment of this Code section, see 6 Ga. St. U.L. 
Rev. 287 (1989). 



100 



42-3-1 



GEORGIA BUILDING AUTHORITY (PENAL) 

CHAPTER 3 



42-3-2 



GEORGIA BUILDING AUTHORITY (PENAL) 



Sec. 

42-3-1. Short title. 

42-3-2. Definitions. 

42-3-3. Creation of authority; composi- 

tion; officers; quorum; compen- 
sation of members; corporate 
powers of authority generally. 

42-3-4. Assignment of authority to De- 
partment of Administrative Ser- 
vices for administrative purposes. 

42-3-5. Powers of authority generally. 

42-3-6. Authority to issue revenue 
bonds; general terms. 

42-3-7. Form, denomination, and place 

of payment of bonds; registra- 
tion. 

42-3-8. Execution of bonds. 

42-3-9. Negotiability of bonds; exemp- 
tion from taxation. 

42-3-10. Sale of bonds; advice and assis- 
tance by Georgia Building Au- 
thority. 

42-3-11. Use of proceeds of revenue 
bonds; issuance of additional 
bonds to cover costs of projects; 
disposition of surplus proceeds. 

42-3-12. Issuance of interim receipts or 
certificates or temporary bonds. 

42-3-13. Replacement of lost, mutilated, 
or destroyed bonds. 

42-3-14. Conditions precedent to issu- 
ance of bonds; bond issuance 
resolution. 

42-3-15. Bonds not deemed to obligate 
state; recital on bonds; use of 
funds for lease contracts. 

42-3-1 6. Securing of bonds by trust inden- 
ture; trust indenture provisions. 

42-3-1. Short title. 



Sec. 

42-3-17. 

42-3-18. 



42-3-19. 
42-3-20. 
42-3-21. 

42-3-22. 

42-3-23. 

42-3-24. 

42-3-25. 
42-3-26. 
42-3-27. 



42-3-28. 
42-3-29. 

42-3-30. 
42-3-31. 
42-3-32. 



Trustee of bond proceeds. 
Pledge and allocation of funds to 
payment of bonds generally; 
sinking fund. 

Private enforcement of rights. 
Revenue refunding bonds. 
Bonds as legal investments; use 
of bonds as security for deposits. 
Exemption of authority and 
bonds from taxation. 
Confirmation and validation of 
bonds. 

Protection of interests and rights 
of bondholders; chapter deemed 
contract with bondholders. 
Acceptance of grants and contri- 
butions by authority. 
Moneys received deemed trust 
funds. 

Establishment of rentals and 
charges for use of projects; costs 
deemed obligations of state; en- 
forcement of performances, cov- 
enants, or obligations; assign- 
ment of rentals. 

Promulgation of rules and regu- 
lations for operation of projects. 
Maintenance of separate and dis- 
tinct accounts of authority; audit 
of accounts. 

Venue and jurisdiction of actions 
under chapter. 

Powers conferred by chapter 
deemed supplemental. 
Liberal construction of chapter. 



This chapter shall be known and may be cited as the "Georgia Building 
Authority (Penal) Act." (Ga. L. 1960, p. 892, § 1; Ga. L. 1967, p. 864, § 1.) 

42-3-2. Definitions. 

As used in this chapter, the term: 

(1) "Authority" means the Georgia Building Authority (Penal), the 
same being formerly known as the State Penal and Rehabilitation 



101 



42-3-2 PENAL INSTITUTIONS 42-3-2 

Authority. All references in this chapter to "authority" shall be construed 
to mean the Georgia Building Authority (Penal) and the change in name 
of the authority shall in no way affect the identity of the authority or the 
rights, powers, privileges, or liabilities of the authority or any person 
under this chapter. 

(2) "Bonds" or "revenue bonds" means any bonds issued by the 
authority under this chapter, including refunding bonds. 

(3) "Cost of the project" means the cost of construction; the cost of all 
lands, properties, rights, easements, and franchises acquired; the cost of 
all machinery and equipment, financing charges, and interest prior to 
and during construction and for one year after completion of construc- 
tion; the cost of engineering, architectural, and legal expenses and of 
plans and specifications and other expenses necessary or incident to 
determining the feasibility or practicability of the project; administrative 
expenses; and such other expenses as may be necessary or incident to the 
financing authorized in this chapter, the construction of any project, the 
placing of the same in operation, and the condemnation of property 
necessary for the construction and operation. Any obligadon or expense 
incurred for any of the foregoing purposes shall be regarded as a part of 
the cost of the project and may be paid or reimbursed as such out of the 
proceeds of revenue bonds issued under this chapter for the project. 

(4) "Project" means and includes one or a combination of two or 
more of the following: 

(A) Penal institutions; 

(B) Penitentiaries; 

(C) Prisons and prison institutions; 

(D) Detention and corrections institutions; 

(E) Rehabilitation institutions and facilities; 

(F) County correctional institutions; 

(G) Facilities for adult and juvenile inmates and offenders and for 
the employees of any department, institution, or agency of the state 
having jurisdiction over state operated institutions where inmates are 
confined, including housing accommodations, buildings, and facilities 
intended for use as: prisons; training schools; classrooms; laboratories; 
medical facilities; dormitory facilities; instructional facilities; industrial, 
mechanical, vocational, and agricultural training facilities; and recre- 
ational and administrative facilities; 

(H) All other structures and electric, gas, steam, and water utilities 
and facilities which are deemed by the authority as necessary and 
convenient for the operation of any department, institution, or agency 
conducting and operating state penal facilities. 

102 



42-3-3 GEORGIA BUILDING AUTHORITY (PENAL) 42-3-3 

(5) "Self-liquidating" means, in the judgment of the authority, that 
the revenues, rents, or earnings to be derived by the authority from any 
project or combination of projects will be sufficient to pay the cost of 
maintaining, repairing, and operating the project and to pay the princi- 
pal and interest of revenue bonds which may be issued for the cost of the 
project, projects, or combination of projects. 

(6) "Unit" means any penal institution, state or county correctional 
institution, training school, rehabilitation school, or other penal or 
rehabilitation facility at any particular location, which unit forms a part of 
the penal, correctional, and rehabilitation facilities of the state. (Ga. L. 
1960, p. 892, § 3; Ga. L. 1964, p. 91, § 1; Ga. L. 1967, p. 864, § 3.) 

OPINIONS OF THE ATTORNEY GENERAL 

Penitentiary defined. — "Penitentiary" the authority of any law of this state. 1968 
means any place where felony prisoners ex- Op. Att'y Gen. No. 68-352. 
clusively are confined at hard labor under 

42-3-3. Creation of authority; composition; officers; quorum; compensation 
of members; corporate powers of authority generally. 

(a) There is created a body corporate and politic, to be known as the 
Georgia Building Authority (Penal), which shall be deemed to be an 
instrumentality of this state and a public corporation. By such name, style, 
and title the body may contract and be contracted with, bring and defend 
actions, implead and be impleaded, and complain and defend in all courts. 

(b) The authority shall consist of five members, who shall be the 
Governor, the state auditor, the Lieutenant Governor, the Commissioner of 
Agriculture, and an appointee of the Governor who is not the Attorney 
General. The authority shall elect one of its members as chairman and 
another as vice-chairman, and it shall also elect a secretary and a treasurer 
who need not necessarily be members of the authority. Three members of 
the authority shall constitute a quorum. No vacancy on the authority shall 
impair the right of the quorum to exercise all rights and perform all the 
duties of the authority. The members of the authority shall be entitled to 
and shall be reimbursed for their actual expenses necessarily incurred in 
the performance of their duties. 

(c) The authority shall make rules and regulations for its own govern- 
ment. It shall have perpetual existence. Any change in name or composition 
of the authority shall in no way affect the vested rights of any person under 
this chapter or impair the obligations of any contracts existing under this 
chapter. (Ga. L. 1960, p. 892, § 2; Ga. L. 1967, p. 864, § 2; Ga. L. 1985, p. 
149, § 42; Ga. L. 1988, p. 426, § 1.) 



103 



42-3-4 PENAL INSTITUTIONS 42-3-5 

RESEARCH REFERENCES 

Am. Jur. 2d. — 63A Am. Jur. 2d, Public C.J.S. — 67 C.J.S., Officers, §§ 219, 223, 

Officers and Employers, § 460 et seq. 235. 

42-3-4. Assignment of authority to Department of Administrative Services 
for administrative purposes. 

The authority is assigned to the Department of Administrative Services 
for administrative purposes only as prescribed in Code Section 50-4-3. (Ga. 
L. 1972, p. 1015, § 419.) 

42-3-5. Powers of authority generally. 

The authority shall have the power: 

(1) To have a seal and alter the same at pleasure; 

(2) To acquire by purchase, lease, or otherwise and to hold, lease, and 
dispose of real and personal property of every kind and character for its 
corporate purposes; 

(3) To acquire in its own name real property or rights of easement 
therein or franchises necessary or convenient for its corporate purposes 
by purchase, on such terms and conditions and in such manner as it may 
deem proper, or by condemnation in accordance with any and all laws 
applicable to the condemnation of property for public use; to use the 
property so long as its corporate existence shall continue and to lease or 
make contracts with respect to the use of or to dispose of the property in 
any manner it deems to the best advantage of the authority, the authority 
being under no obligation to accept and pay for any property con- 
demned under this chapter, except from the funds provided under the 
authority of this chapter. In any proceedings to condemn, such orders as 
may be just to the authority and to the owners of the property to be 
condemned may be made by the court having jurisdiction of the 
proceedings. No property upon which any lien or other encumbrance 
exists shall be acquired under this chapter unless, at the time the 
property is so acquired, a sufficient sum of money is deposited in trust to 
pay and redeem the fair value of the lien or encumbrance. If the authority 
deems it expedient to construct any project on lands which are a part of 
the campus, grounds, or any other real estate holdings of a unit of the 
penal, correctional, or rehabilitation facilities of the state, the Governor 
is authorized to execute, for and on behalf of the state, a lease to the 
authority upon the lands for such parcel or parcels as shall be needed for 
a period not to exceed 50 years. If the authority deems it expedient to 
construct any project on any other lands, the title to which is then in the 
state, the Governor is authorized to convey, for and on behalf of the state, 
title to the lands for the authority as part of the consideration for the 
construction and financing of the project by the authority; 

104 



42-3-5 GEORGIA BUILDING AUTHORITY (PENAL) 42-3-5 

(4) To appoint and select officers, agents, and employees, including 
engineering, architectural, and construction experts, fiscal agents, and 
attorneys, and to fix their compensation; 

(5) To make contracts and leases and to execute all instruments 
necessary or convenient, including contracts for the construction of 
projects and leases of projects or contracts with respect to the use of 
projects which it causes to be erected or acquired. Any and all political 
subdivisions, departments, institutions, or agencies of the state are 
authorized to enter into contracts, leases, or agreements with the 
authority upon such terms and for such purposes as they deem advisable. 
Without limiting the generality of the above, authority is specifically 
granted to the Department of Corrections, for and on behalf of the units 
and institutions under its control, and to the authority to enter into 
contracts and lease agreements for the use of any structure, building, or 
facilities of the authority for a term not exceeding 50 years. The 
Department of Corrections, for and on behalf of any unit or institution or 
combination of units or institutions, may obligate itself to pay an agreed 
sum for the use of the property so leased and may also obligate itself, as 
part of the lease contract, to pay the cost of maintaining, repairing, and 
operating the property so leased from the authority; 

(6) To construct, erect, acquire, own, repair, remodel, maintain, add 
to, extend, improve, equip, operate, and manage projects, as defined in 
paragraph (4) of Code Section 42-3-2, to be located on property owned 
by or leased by the authority, the cost of any such project to be paid in 
whole or in part from the proceeds of revenue bonds of the authority or 
from such proceeds and any grant from the United States government or 
any agency or instrumentality thereof; 

(7) To accept loans or grants of money or materials or property of any 
kind from the United States government or any agency or instrumentality 
thereof, upon such terms and conditions as the United States govern- 
ment or the agency or instrumentality may impose; 

(8) To borrow money for any of its corporate purposes and to issue 
negotiable bonds payable solely from funds pledged for that purpose and 
to provide for the payment of the same and for the rights of the holders 
thereof; 

(9) To exercise any power usually possessed by private corporations 
performing similar functions which is not in conflict with the Constitu- 
tion and laws of this state; and 

(10) To do all things necessary or convenient to carry out the powers 
expressly given in this chapter. (Ga. L. 1960, p. 892, § 4; Ga. L. 1982, p. 
3, § 42; Ga. L. 1985, p. 283, § 1.) 



105 



42-3-6 PENAL INSTITUTIONS 42-3-7 

RESEARCH REFERENCES 

Am. Jut. 2d. — 64 Am. Jur. 2d, Public rehabilitation of criminals, delinquents, or 
Securities and Obligations, § 46. alcoholics as enjoinable nuisance, 21 ALR3d 

ALR. — Institution for the punishment or 1058. 

42-3-6. Authority to issue revenue bonds; general terms. 

The authority, or any authority or body which has or which may in the 
future succeed to the powers, duties, and liabilities vested in the authority 
created by this chapter, shall have the power and is authorized to provide by 
resolution for the issuance of negotiable revenue bonds in a sum not to 
exceed $100 million for the purpose of paying all or any part of the cost, as 
defined in paragraph (3) of Code Section 42-3-2, of any one or combination 
of projects. Once a total of $100 million in revenue bonds has been issued, 
no revenue bonds shall be issued thereafter. The principal and interest of 
the revenue bonds shall be payable solely from the special fund provided for 
in this chapter for such payment. The bonds of each issue shall be dated, 
shall bear interest at such rate or rates payable semiannually, shall mature 
at such time or times not exceeding 30 years from their date or dates, and 
shall be payable in such medium of payment as to both principal and 
interest as may be determined by the authority. They may be made 
redeemable before maturity, at the option of the authority, at such price or 
prices and under such terms and conditions as may be fixed by the authority 
in the resolution providing for the issuance of the bonds. (Ga. L. 1960, p. 
892, § 5; Ga. L. 1965, p. 591, § 1; Ga. L. 1967, p. 810, § 1; Ga. L. 1970, p. 
552, § 1; Ga. L. 1982, p. 3, § 42; Ga. L. 1989, p. 415, § 1.) 

Cross references. — Revenue bonds gen- 
erally, § 36-82-60 et seq. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 64 Am. Jur. 2d, Public 
Securities and Obligations, §§ 46, 56, 57, 63, 
94-99, 104, 105, 416, 417. 

42-3-7. Form, denomination, and place of payment of bonds; registration. 

The authority shall determine the form of the bonds, including any 
interest coupons to be attached thereto, and shall fix the denomination or 
denominations of the bonds and the place or places of payment of principal 
and interest thereof, which may be at any bank or trust company within or 
outside the state. The bonds may be issued in coupon or registered form or 
both, as the authority may determine, and provision may be made for the 
registration of any coupon bond as to principal alone and also as to both 
principal and interest. (Ga. L. 1960, p. 892, § 6.) 

106 



42-3-8 GEORGIA BUILDING AUTHORITY (PENAL) 42-3-10 

RESEARCH REFERENCES 

Am. Jur. 2d. — 64 Am. Jur. 2d, Public 
Securities and Obligations, §§ 193-195, 197, 
202, 426. 

42-3-8. Execution of bonds. 

In case any officer whose signature shall appear on any bonds or whose 
facsimile signature shall appear on any coupon shall cease to be an officer 
before the delivery of the bonds, the signature shall nevertheless be valid 
and sufficient for all purposes the same as if he had remained in office until 
delivery. All bonds shall be signed by the chairman of the authority, and the 
official seal of the authority shall be affixed thereto and attested by the 
secretary of the authority. Any coupons attached thereto shall bear the 
signature or facsimile signature of the chairman of the authority. Any 
coupon may bear the facsimile signature of such person and any bond may 
be signed, sealed, and attested on behalf of the authority by such persons as 
at the actual time of the execution of the bonds shall be duly authorized or 
hold the proper office, although at the date of the bonds the persons may 
not have been so authorized or shall not have held such office. (Ga. L. 1960, 
p. 892, § 7.) 

RESEARCH REFERENCES 

Am. Jur. 2d. — 64 Am. Jur. 2d, Public 
Securities and Obligations, §§ 187-192. 

42-3-9. Negotiability of bonds; exemption from taxation. 

All revenue bonds issued under this chapter shall have and are declared 
to have all the qualities and incidents of negotiable instruments under the 
law of this state. The bonds and the income thereof shall be exempt from 
all taxation within this state. (Ga. L. 1960, p. 892, § 8.) 

RESEARCH REFERENCES 

Am. Jur. 2d. — 64 Am. Jur. 2d, Public subdivision as subject of taxation or exemp- 
Securities and Obligations, §§ 270, 271. tion, 44 ALR 510. 

ALR. — Bond or warrant of governmental 

42-3-10. Sale of bonds; advice and assistance by Georgia Building Authority. 

The authority may sell its bonds in such manner and for such price as it 
may determine to be for the best interests of the authority. Whenever the 
authority determines to issue its bonds, it shall call upon the Georgia 
Building Authority to render advice and to perform, as its agent, ministerial 

107 



42-3-11 PENAL INSTITUTIONS 42-3-14 

services in connection with the marketing of the bonds. (Ga. L. 1960, p. 
892, § 9; Ga. L. 1967, p. 864, § 4.) 

Cross references. — Georgia Building Au- 
thority, Ch. 9, T. 50. 

42-3-1 1 . Use of proceeds of revenue bonds; issuance of additional bonds to 
cover costs of projects; disposition of surplus proceeds. 

The proceeds of the bonds shall be used solely for the payment of the cost 
of the project or combined projects and shall be disbursed upon requisition 
or order of the chairman of the authority under such restrictions, if any, as 
the resolution authorizing the issuing of the bonds or the trust indenture 
mentioned in this chapter may provide. If the proceeds of the bonds, by 
error of calculation or otherwise, are less than the cost of the project or 
combined projects, unless otherwise provided in the resolution authorizing 
the issuance of the bonds or in the trust indenture, additional bonds may 
in like manner be issued to provide the amount of the deficit, which 
additional bonds, unless otherwise provided in the resolution authorizing 
the issuance of the bonds or in the trust indenture, shall be deemed to be 
of the same issue and shall be entitled to payment from the same fund 
without preference or priority of the bonds first issued for the same 
purpose. If the proceeds of the bonds of any issue exceed the amount 
required for the purpose for which the bonds are issued, the surplus shall 
be paid into the fund provided for in this chapter for the payment of 
principal and interest of the bonds. (Ga. L. 1960, p. 892, § 10.) 

42-3-12. Issuance of interim receipts or certificates or temporary bonds. 

Prior to the preparation of definitive bonds, the authority may, under like 
restrictions, issue interim receipts, interim certificates, or temporary bonds, 
with or without coupons exchangeable for definitive bonds upon the 
issuance of the latter. (Ga. L. 1960, p. 892, § 11.) 

42-3-13. Replacement of lost, mutilated, or destroyed bonds. 

The authority may provide for the replacement of any bond which 
becomes mutilated or is destroyed or lost. (Ga. L. 1960, p. 892, § 12.) 

42-3-14. Conditions precedent to issuance of bonds; bond issuance resolu- 
tion. 

Revenue bonds may be issued without any proceedings or the happening 
of any conditions or things other than those proceedings, conditions, and 
things which are specified or required by this chapter. In the discretion of 
the authority, revenue bonds of a single issue may be issued for the purpose 

108 



42-3-15 GEORGIA BUILDING AUTHORITY (PENAL) 42-3-16 

of paying the cost of any one or more or a combination of projects at any 
one institution or any number of institutions. Any resolution providing for 
the issuance of revenue bonds under this chapter shall become effective 
immediately upon its passage and need not be published or posted; and any 
such resolution may be passed at any regular, special, or adjourned meeting 
of the authority by a majority of its members. (Ga. L. 1960, p. 892, § 13.) 

OPINIONS OF THE ATTORNEY GENERAL 

Action by legislature. — No action on part authority purposes. 1963-65 Op. Att'y Gen. 
of legislature is contemplated or required as p. 380. 
condition precedent to issuing bonds for 

RESEARCH REFERENCES 

Am. Jur. 2d. — 64 Am. Jur. 2d, Public 
Securities and Obligations, §§ 94-99, 104, 
105, 206. 

42-3-1 5. Bonds not deemed to obligate state; recital on bonds; use of fluids 
for lease contracts. 

Revenue bonds issued under this chapter shall not be deemed to 
constitute a debt of this state or a pledge of the faith and credit of the state. 
The bonds shall be payable solely from the fund provided for in this 
chapter; and the issuance of the revenue bonds shall not directly, indirecdy, 
or contingently obligate the state to levy or to pledge any form of taxation 
whatever therefor or to make any appropriation for the payment thereof. 
All such bonds shall contain recitals on their face covering substantially the 
foregoing provisions of this Code section; provided, however, that such 
funds as may be received from state appropriations or from any other 
source are declared to be available and may be used by the Department of 
Corrections for the performance of any lease contract entered into by the 
department. (Ga. L. 1960, p. 892, § 14; Ga. L. 1985, p. 283, § 1.) 

42-3-16. Securing of bonds by trust indenture; trust indenture provisions. 

In the discretion of the authority, any issue of revenue bonds may be 
secured by a trust indenture by and between the authority and a corporate 
trustee, which may be any trust company or bank having the powers of a 
trust company within or outside of the state. The trust indenture may 
pledge or assign rents, revenues, and earnings to be received by the 
authority. Either the resolution providing for the issuance of revenue bonds 
or the trust indenture may contain such provisions for protecting and 
enforcing the rights and remedies of the bondholders as may be reasonable 
and proper and not in violation of law, including covenants setting forth the 
duties of the authority in relation to the acquisition of property; the 
construction of the project; the maintenance, operation, repair, and 

109 



42-3-17 PENAL INSTITUTIONS 42t3-1S 

insurance of the project; and the custody, safeguarding, and application of 
all moneys. The resolution or trust indenture may also (1) provide that any 
project shall be constructed and paid for under the supervision and 
approval of consulting engineers or architects employed or designated by 
the authority and satisfactory to the original purchasers of the bonds issued 
therefor, (2) require that the security given by contractors and by any 
depository of the proceeds of the bonds or revenues or other moneys be 
satisfactory to such purchasers, and (3) contain provisions concerning the 
conditions, if any, upon which additional revenue bonds may be issued. It 
shall be lawful for any bank or trust company incorporated under the laws 
of this state to act as such depository and to furnish such indemnifying 
bonds or to pledge such securities as may be required by the authority. The 
trust indenture may set forth the rights and remedies of the bondholders 
and of the trustee and may restrict the individual right of action of 
bondholders as is customary in trust indentures securing bonds and 
debentures of corporations. In addition to the foregoing, the trust inden- 
ture may contain such other provisions as the authority may deem reason- 
able and proper for the security of the bondholders. All expenses incurred 
in carrying out the trust indenture may be treated as a part of the cost of 
maintenance, operation, and repair of the project affected by the trust 
indenture. (Ga. L. 1960, p. 892, § 15.) 

42-3-17. Trustee of bond proceeds. 

In the resolution providing for the issuance of revenue bonds or in the 
trust indenture, the authority shall provide for the payment of the proceeds 
of the sale of the bonds to any officer or person who, or to any agency, bank, 
or trust company which, shall act as trustee of such funds and shall hold and 
apply the same to the purposes of this chapter, subject to such regulations 
as this chapter and the resolution or trust indenture may provide. (Ga. L. 
1960, p. 892, § 16; Ga. L. 1982, p. 3, § 42.) 

42-3-18. Pledge and allocation of funds to payment of bonds generally; 
sinking fund. 

(a) The following funds may be pledged and allocated by the authority 
to the payment of the principal and interest on revenue bonds of the 
authority, as the resolution authorizing the issuance of the bonds or the 
trust instrument may provide: 

(1) The revenues, rents, and earnings derived from any particular 
project or combination of projects; 

(2) Any and all funds received by the Department of Corrections from 
any source and pledged and allocated by the department to the authority 
as security for the performance of any lease or leases; and 

(3) Any and all revenues, rents, and earnings received by the authority, 
regardless of whether or not the rents, earnings, and revenues were 

110 



42-3-19 GEORGIA BUILDING AUTHORITY (PENAL) 42-3-19 

produced by a particular project for which bonds have been issued, 
unless otherwise pledged and allocated. 

(b) The funds pledged, from whatever source received, including funds 
received from one or more or all of the sources referred to in subsection (a) 
of this Code section, shall be set aside at regular intervals, as may be 
provided in the resolution or trust indenture, into a sinking fund. The 
sinking fund shall be pledged to and charged with the payment of: 

(1) The interest upon revenue bonds of the authority as interest shall 
fall due; 

(2) The principal of the bonds as the same shall fall due; 

(3) The necessary charges of paying agents for paying principal and 
interest; and 

(4) Any premium upon bonds retired by call or purchase, as provided 
in this chapter. 

(c) The use and disposition of the sinking fund shall be subject to such 
regulations as may be provided in the resolution authorizing the issuance of 
the revenue bonds or in the trust indenture, but, except as may otherwise 
be provided in the resolution or trust indenture, the sinking fund shall be 
a fund for the benefit of all revenue bonds without distinction or priority of 
one over another. Subject to the resolution authorizing the issuance of the 
bonds or the trust indenture, surplus moneys in the sinking fund may be 
applied to the purchase or redemption of bonds; and any such bonds 
purchased or redeemed shall be canceled and shall not again be issued. 
(Ga. L. 1960, p. 892, § 17; Ga. L. 1985, p. 283, § 1.) 

RESEARCH REFERENCES 

Am. Jur. 2d. — 64 Am. Jur. 2d, Public applied to sinking funds for retirement of 

Securities and Obligations, § 425. municipal or other public bonds, 115 ALR 

ALR. — Constitutional provisions against 220. 
impairment of obligations of contract as 

42-3-19. Private enforcement of rights. 

Any holder of revenue bonds or interest coupons issued under this 
chapter, any receiver for such holders, or any indenture trustee, except to 
the extent the rights given in this Code section may be restricted by 
resolution passed before the issuance of the bonds or by the trust 
indenture, by action, mandamus, or other proceedings, may protect and 
enforce any and all rights under the laws of this state or granted under this 
chapter or under the resolution or trust indenture and may enforce and 
compel performance of all duties required by this chapter or by resolution 
or trust indenture to be performed by the authority or any officer thereof, 
including the fixing, charging, and collecting of revenues, rents, and other 

111 



42-3-20 PENAL INSTITUTIONS 42-3-21 

charges for the use of the project or projects. In the event of default of the 
authority upon the principal and interest obligations of any revenue bond 
issue, such bondholder, receiver, or indenture trustee shall be subrogated to 
each and every right, specifically including the contract rights of collecting 
rental, which the authority may possess against the Department of Correct 
tions or other contracting or leasing department, agency, or institution of 
the state and in the pursuit of its remedies as subrogee, may proceed by 
action, mandamus, or other proceedings to collect any sums due and owing 
to the authority and pledged or partially pledged directly or indirectly to 
the benefit of the revenue bond issue of which the bondholder, receiver, or 
trustee is representative. No holder of any bond of the authority or receiver 
or indenture trustee thereof shall have the right to compel any exercise of 
the taxing power of the state to pay any bond or the interest thereon or to 
enforce the payment thereof against any property of the state; nor shall any 
bond of the authority constitute a charge, lien, or encumbrance, legal or 
equitable, upon the property of the state; provided, however, that any 
provision of this or any other chapter to the contrary notwithstanding, any 
such bondholder or receiver or indenture trustee shall have the right by 
appropriate legal or equitable proceedings including, without being limited 
to, mandamus to enforce compliance by the appropriate public officials 
with Article VII, Section IV of the Constitution of this state; and permission 
is given for the institution of any such proceedings to compel the payment 
of lease obligations. (Ga. L. 1960, p. 892, § 18; Ga. L. 1964, p. 91, § 2; Ga. 
L. 1982, p. 3, § 42; Ga. L. 1983, p. 3, § 60; Ga. L. 1985, p. 283, § 1.) 

RESEARCH REFERENCES 

Am. Jur. 2d. — 64 Am. Jur. 2d, Public 
Securities and Obligations, §§ 261-263, 
266-269, 276, 403 et seq. 

42-3-20. Revenue refunding bonds. 

The authority is authorized to provide by resolution for the issuance of 
revenue refunding bonds of the authority for the purpose of refunding any 
revenue bonds issued under this chapter and then outstanding, together 
with accrued interest thereon. The issuance of revenue refunding bonds, 
the maturities and all other details thereof, the rights of the holders thereof, 
and the duties of the authority in respect to the same shall be governed by 
this chapter, insofar as the same may be applicable. (Ga. L. I960, p. 892, 
§ 19.) 

42-3-21. Bonds as legal investments; use of bonds as security for deposits. 

The bonds authorized in this chapter are made securities in which (1) all 
public officers and bodies of this state, (2) all municipalities and all 
municipal subdivisions, (3) all insurance companies and associations and 

112 



42-3-22 GEORGIA BUILDING AUTHORITY (PENAL) 42-3-23 

other persons carrying on an insurance business, (4) all banks, bankers, 
trust companies, savings banks, and savings associations, including savings 
and loan associations, building and loan associations, investment compa- 
nies, and other persons carrying on a banking business, (5) all administra- 
tors, guardians, executors, trustees, and other fiduciaries, and (6) all other 
persons whatsoever who may invest in bonds or other obligations of the 
state may properly and legally invest funds, including capital in their control 
or belonging to them. The bonds are also made securities which may be 
deposited with and shall be received by all public officers and bodies of this 
state and all municipalities and municipal subdivisions for any purpose for 
which the deposit of the bonds or other obligations of this state is 
authorized. (Ga. L. 1960, p. 892, § 20.) 

42-3-22. Exemption of authority and bonds from taxation. 

It is found, determined, and declared that the creation of the authority 
and the carrying out of its corporate purpose is in all respects for the 
benefit of the people of this state and is a public purpose and that the 
authority will be performing an essential governmental function in the 
exercise of the powers conferred upon it by this chapter. This state 
covenants with the holders of the bonds issued under this chapter that the 
authority shall be required to pay no taxes or assessments upon any of the 
property acquired or leased by it or under its jurisdiction, control, 
possession, or supervision; upon its activities in the operation or mainte- 
nance of the buildings erected or acquired by it; upon any fees, rentals, or 
other charges for the use of such buildings; or upon other income received 
by the authority. This state further covenants that the bonds of the 
authority, their transfer, and the income therefrom shall at all times be 
exempt from taxation within the state. (Ga. L. 1960, p. 892, § 21; Ga. L. 
1982, p. 3, § 42.) 

42-3-23. Confirmation and validation of bonds. 

Bonds of the authority shall be confirmed and validated in accordance 
with the procedure of Article 3 of Chapter 82 of Title 36. The petition for 
validation shall also make any authority, subdivision, instrumentality, or 
agency of this state which has contracted with the authority for the use of 
any building, structure, or facilities for which bonds have been issued and 
sought to be validated a party defendant to the action. Such authority, 
subdivision, instrumentality, or agency shall be required to show cause, if 
any, why the contract or contracts and the terms and conditions thereof 
should not be inquired into by the court, the validity of the terms thereof 
determined, and the contract adjudicated as security for the payment of any 
bonds of the authority. The bonds, when validated, and the judgment of 
validation shall be final and conclusive with respect to the bonds and against 
the authority issuing the same, as well as against any authority, subdivision, 

113 



42-3-24 PENAL INSTITUTIONS 42-3-26 

instrumentality, or agency contracting with the authority. (Ga. L. 1960, p. 
892, § 23.) 

42-3-24. Protection of interests and rights of bondholders; chapter deemed 
contract with bondholders. 

While any of the bonds issued by the authority remain outstanding, the 
powers, duties, or existence of the authority or of its officers, employees, or 
agents or of the Department of Corrections or of any other state agency or 
department shall not be diminished or impaired in any manner that will 
affect adversely the interests and rights of the holders of the bonds; and no 
other entity, department, agency, or authority will be created which will 
compete with the authority to such an extent as to affect adversely the 
interests and rights of the holders of the bonds, nor will the state itself so 
compete with the authority. This chapter shall be for the benefit of the state, 
the authority, and the holders of any such bonds and, upon the issuance of 
bonds under this chapter, shall constitute a contract with the holders of the 
bonds. (Ga. L. 1960, p. 892, § 24; Ga. L. 1985, p. 283, § 1.) 

RESEARCH REFERENCES 

Am. Jur. 2d. — 64 Am. Jur. 2d, Public 
Securities and Obligations, § 403. 

42-3-25. Acceptance of grants and contributions by authority. 

In addition to the moneys which may be received from the sale of revenue 
bonds and from the collection of revenues, rents, and earnings derived 
under this chapter, the authority shall have authority to accept from any 
federal agency grants for or in aid of the construction of any projects or for 
the payment of bonds and to receive and accept from any source contribu- 
tions of money or property or other things of value to be held, used, and 
applied only for the purposes for which the grants or contributions may be 
made. (Ga. L. 1960, p. 892, § 25.) 

OPINIONS OF THE ATTORNEY GENERAL 

Acceptance and use of contributions. — the salary of the commissioner of correc- 

The Georgia Building Authority (Penal) may tions for services rendered. 1971 Op. Att'y 

accept and receive contributions from any Gen. No. 71-101. 
source, and use such contributions to pay 

42-3-26. Moneys received deemed trust funds. 

All moneys received pursuant to the authority of this chapter, whether as 
proceeds from the sale of revenue bonds, as grants or other contributions, 
or as revenues, rents, and earnings, shall be deemed to be trust funds to be 

114 



42-3-27 GEORGIA BUILDING AUTHORITY (PENAL) 42-3-27 

held and applied solely as provided in this chapter. (Ga. L. 1960, p. 892, 
§ 26.) 

42-3-27. Establishment of rentals and charges for use of projects; costs 
deemed obligations of state; enforcement of performances, cove- 
nants, or obligations; assignment of rentals. 

(a) The authority is authorized to fix rentals and other charges which the 
Department of Corrections shall pay to the authority for the use of each 
project or part thereof or combination of projects, to charge and collect the 
same, and to lease and make contracts with political subdivisions, agencies, 
and with the Department of Corrections with respect to the use by any 
institution or unit under its control of any project or part thereof. The 
rentals and other charges shall be fixed and adjusted in respect to the 
aggregate thereof from the project or projects for which a single issue of 
revenue bonds is issued so as to provide a fund sufficient with other 
revenues of the project or projects, if any, to pay: 

(1) The cost of maintaining, repairing, and operating the project or 
projects, including reserves for extraordinary repairs and insurance and 
other reserves required by the resolution or trust indentures, unless the 
cost is otherwise provided for, which cost shall be deemed to include the 
expenses incurred by the authority on account of the project or projects 
for water, light, sewer, and other services furnished by other facilities at 
such institution; and 

(2) The principal of the revenue bonds and the interest thereon as the 
same becomes due. 

(b) The rentals contracted to be paid to the authority by the Department 
of Corrections or other contracting or leasing department, agency, or 
institution of the state under leases entered upon pursuant to this chapter 
shall constitute obligations of the state for the payment of which the good 
faith of the state is pledged. The rentals shall be paid as provided in the 
lease contracts from funds appropriated for such purposes by the terms of 
the Constitution of this state. It shall be the duty of the Department of 
Corrections or other contracting or leasing department, agency, or institu- 
tion of the state to see to the punctual payment of all such rentals. 

(c) In the event of any failure or refusal on the part of lessees to perform 
punctually any covenant or obligation contained in any lease entered upon 
pursuant to this chapter, the authority may enforce performance by any 
legal or equitable process against lessees; and consent is given for the 
institution of any such action. 

(d) The authority shall be permitted to assign any rental due it by the 
lessees to a trustee or paying agent, as may be required by the terms of any 
trust indenture entered into by the authority. (Ga. L. 1960, p. 892, § 27; Ga. 
L. 1964, p. 91, § 3; Ga. L. 1985, p. 283, § 1; Ga. L. 1991, p. 94, § 42.) 

115 



42-3-28 PENAL INSTITUTIONS 42-3-32 

42-3-28. Promulgation of rules and regulations for operation of projects. 

It shall be the duty of the authority to prescribe rules and regulations for 
the operation of each project or combination of projects constructed under 
this chapter, including rules and regulations to ensure maximum use or 
occupancy of each project. (Ga. L. 1960, p. 892, § 28.) 

42-3-29. Maintenance of separate and distinct accounts of authority; audit 
of accounts. 

The accounts of the authority shall be kept as separate and distinct 
accounts by the Department of Corrections and shall be subject to audit by 
the Department of Audits and Accounts. (Ga. L. 1960, p. 892, § 32; Ga. L. 
1985, p. 283, § 1.) 

42-3-30. Venue and jurisdiction of actions under chapter. 

Any action to protect or enforce any rights under this chapter shall be 
brought in the Superior Court of Fulton County, as shall any action 
pertaining to validation of any bonds issued under this chapter. Such court 
shall have exclusive, original jurisdiction of such actions. (Ga. L. 1960, p. 
892, § 22.) 

Law reviews. — For note discussing prob- of venue questions, see 9 Ga. St. BJ. 254 
lems with venue in Georgia, and proposing (1972). 
statutory revisions to improve the resolution 

42-3-31. Powers conferred by chapter deemed supplemental. 

This chapter shall be deemed to provide an additional and alternative 
method for the doing of the things authorized in this chapter, shall be 
regarded as supplemental and additional to powers conferred by other laws, 
and shall not be regarded as in derogation of any other powers. (Ga. L. 
1960, p. 892, § 29; Ga. L. 1985, p. 149, § 42.) 

42-3-32. Liberal construction of chapter. 

This chapter, being for the welfare of the state and its inhabitants, shall be 
liberally construed to effect the purposes hereof. (Ga. L. 1960, p. 892, 
§ 30.) 



116 



JAILS 

CHAPTER 4 



JAILS 



Article 1 
General Provisions 



Sec. 
42-4-51. 



Sec. 

42-4-1. Appointment of county and mu- 
nicipal jailers. 

42-4-2. Oath and bond of jailers. 

42-4-3. When coroner to act as keeper of 
jail. 

42-4-4. Duties of sheriff as to jail in- 
mates; designation of inmate as 
trusty; failure to comply with 
Code section. 

42-4-5. Cruelty to inmates. 

42-4-6. Confinement and care of tuber- 
cular inmates; crediting of time 
spent in hospital or institution 
against sentence. 

42-4-7. Maintenance of inmate record 
by sheriff; good-time allowances. 

42-4-8. Inquiry into contents of inmate 
record by grand jury; failure to 
comply with Code Section 42-4-7. 

42-4-9. Conditions for receipt of federal 
prisoners. 

42-4-10. Receipt of additional federal 
prisoners after initial accep- 
tance. 

42-4-1 1. Procedure for transfer of person 
in custody upon change of 
venue. 

42-4-12. Penalty for refusal by officer to 
receive persons charged with or 
guilty of offense. 

42-4-13. Possession of drugs, weapons, or 
alcohol by inmates. 

Article 2 
Conditions of Detention 

42-4-30. Definitions. 

42-4-31. Required safety and security 
measures. 

42-4-32. Sanitation and health require- 
ments generally; meals; inspec- 
tions; medical treatment. 

42-4-33. Penalty for violations of article. 

Article 3 
Medical Services for Inmates 

42-4-50. Definitions. 



Information as to inmate's 
health insurance or eligibility for 
benefits; access to medical ser- 
vices; liability for payment; in- 
mate's liability for costs of medi- 
cal care; procedure for recovery 
against inmate. 

Article 4 



Deductions from Inmate Accounts for 
Expenses 

42-4-70. Definitions. 

42-4-71 . Deduction of costs from inmate's 
account for destruction of prop- 
erty, medical treatment, and 
other causes; exception for cer- 
tain medical costs. 

Article 5 
Regional Jail Authorities 

42-4-90. Short title. 

42-4-91. Statement of authority; policy of 
state. 

42-4-92. Definitions. 

42-4-93. Creation of authorities; ordi- 
nance or resolution required; 
agreement; approval of sheriff; 
exemption from Georgia State 
Financing and Investment Com- 
mission Act. 

42-4-94. Board of directors; members; 
election of officers; expenses; du- 
ties; addition of counties or mu- 
nicipalities to authority. 

42-4-95. Management committee of 
county regional jail authority; 
management and operation of 
municipal regional jail authority. 

42-4-96. Quorums; voting requirements. 

42-4-97. Powers of authority. 

42-4-98. Duties and responsibilities of 
sheriffs and governing bodies 
imposed upon management 
committee and authority. 

42-4-99. Limitation on liability of mem- 
bers, officers, or employees. 

42-4-100. Bonds or other obligations; re- 



117 



42-4-1 



PENAL INSTITUTIONS 



42-4-1 



Sec. 



42-4-101 



42-4-102. 



quirements and procedure for 
issuance. 

Bonds or other obligations not 
indebtedness of state or political 
subdivision; payment. 
Construction of article; bonds 
not subject to regulation under 
Georgia Securities Act; power of 
counties and municipalities to 
activate authorities. 



Sec. 
42-4-103. 



42-4-104. 



42-4-105. 



Operation and finance agree- 
ment required; withdrawal from 
authority. 

Authority of county or munici- 
pality to establish and maintain 
jail or jail-holding facility. 
Immunity of authorities from li- 
ability. 



Cross references. — Standards relating to 
construction of county jails, § 36-9-9. 



JUDICIAL DECISIONS 



Court order that sheriff transfer prisoner 
to secure jail. — While it is beyond dispute 
that the sheriff, and not the superior court, 
is charged with administration of jails, where 
an issue is properly raised before the trial 
court regarding jail security or other matters 
of jail administration and evidence is pre- 



sented on the issue, the court is empowered 
to make a determination. Upon a determi- 
nation that the jail is not secure, the trial 
court is authorized to order the sheriff to 
transfer a prisoner to the nearest county 
having a secure jail. In re Irvin, 254 Ga. 251, 
328S.E.2d215 (1985). 



RESEARCH REFERENCES 



ALR. — Constitutional right of prisoners 
to abortion services and facilities — federal 
cases, 90 ALR Fed. 683. 

ARTICLE 1 
GENERAL PROVISIONS 

RESEARCH REFERENCES 

ALR. — Validity and construction of 
prison regulation of inmates' possession of 
personal property, 66 ALR4th 800. 

42-4-1. Appointment of county and municipal jailers. 

(a) By virtue of their offices, sheriffs are jailers of the counties and have 
the authority to appoint other jailers, subject to the supervision of the 
county governing authority, as prescribed by law. 

(b) By virtue of their offices, chiefs of police are the jailers of the 
municipal corporations and have the authority to appoint other jailers, 
subject to the supervision of the municipal governing authority, as pre- 



118 



42-4-2 JAILS 42-4-2 

scribed by law. Each jailer of a municipal corporation shall maintain the 
records required of sheriffs by subsection (a) of Code Section 42-4-7. (Orig. 
Code 1863, § 331; Code 1868, § 392; Code 1873, § 356; Code 1882, § 356; 
Penal Code 1895, § 1120; Penal Code 1910, § 1149; Code 1933, § 77-101; 
Ga. L. 1988, p. 266, § 1.) 

Cross references. — Sheriffs generally, 
Ch. 16, T. 15. 

JUDICIAL DECISIONS 

Liability of sheriff for prisoner's death. — ers, such as matches, and on the ground that 

Where a prisoner has been placed in the the jailor did not respond to the drunken 

custody of and accepted by a sheriff through cries of the prisoner for help. Kendrick v. 

his deputy, the jailor of the county, and Adamson, 51 Ga. App. 402, 180 S.E. 647 

where the prisoner is drunk and as a result (1935). 

of his drunkenness sets fire to himself and is Sheriff of county has a statutory duty to 

burned to death, the sheriff and the sureties acC ept all city prisoners and the county 

on his official bond are not liable to the commissioners have authority to require him 

dependents of the deceased prisoner, upon to do so> Griffin v . Chatham County, 244 Ga. 

the ground that the jailor was negligent in 628) 2 61 S.E.2d 570 (1979). 

incarcerating him in a cell by himself with- QM [n ^ „ m m ^ m 

out first searching him and removing from 2? g £ gd gQ ( "^ } H owington v. Wilson, 



his person any object or article with which 
he might inflict injury upon himself or oth 



213 Ga. 664, 100 S.E.2d 726 (1957). 
E ATTORNEY GENERAL 



Person arrested by a campus policeman No surcharge payment as condition to 

for violation of a state criminal law should be serving sentence. — A sheriff must accept 

incarcerated in the county jail, as the sheriff into custody those individuals convicted of 

is, by virtue of his office, the county jailer; criminal offenses who have been sentenced 

whether the accused is to be admitted to bail to a term of incarceration, and the sheriff 

and the amount thereof are matters which may not require payment of a surcharge as a 

are addressed to the commitment court. condition precedent to service of the sen- 

1970 Op. Att'y Gen. No. 70-69. tence. 1992 Op. Att'y Gen. No. U92-4. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and Prisoners, §§ 14-16. 80 C.J.S., Sheriffs and 
Correctional Institutions, §§ 21, 22. Constables, § 32. 

C.J.S. — 72 C.J.S., Prisons and Rights of 

42-4-2. Oath and bond of jailers. 

Before commencing to carry out the duties of their office, jailers must 
give to the sheriff a bond and surety for the sum of $1,000.00, conditioned 
for the faithful performance of their duties as jailers, and shall take and 
subscribe before the sheriff of their respective counties, to be filed in and 
entered into the records of the sheriff's office, the following oath: 

119 



42-4-3 



PENAL INSTITUTIONS 



42-4-3 



"I do swear that I will well and truly do and perform, all and singular, 

the duties of jailer for the County of ; and that I will humanely treat 

prisoners who may be brought to the jail of which I am keeper and not 
suffer them to escape by any negligence or inattention of mine. So help 
me God/' (Laws 1811, Cobb's 1851 Digest, pp. 201, 202; Code 1863, 
§ 332; Code 1868, § 393; Code 1873, § 357; Code 1882, § 357; Penal 
Code 1895, § 1121; Penal Code 1910, § 1150; Code 1933, § 77-102; Ga. 
L. 1987, p. 342, § 1.) 

JUDICIAL DECISIONS 



Duty of care sheriff owes prisoners. — A 

sheriff owes to a prisoner placed in his 
custody a duty to keep the prisoner safely 
and free from harm, to render him medical 
aid when necessary, and to treat him hu- 
manely and refrain from oppressing him; 
and where a sheriff is negligent in his care 
and custody of a prisoner, and as a result the 
prisoner receives injury or meets his death, 
or where a sheriff fails in the performance of 
his duty to the prisoner, and the latter suffers 
injury or meets his death as a result of such 
failure, the sheriff would, in a proper case, 
be liable on his official bond to the injured 
prisoner or to his dependents. Kendrick v. 
Adamson, 51 Ga. App. 402, 180 S.E. 647 
(1935). 

Liability of sheriff for prisoner's death. — 
Where a prisoner has been placed in the 
custody of and accepted by a sheriff through 
his deputy, the jailor of the county, and 
where the prisoner is drunk and as a result 



of his drunkenness sets fire to himself and is 
burned to death, the sheriff and the sureties 
on his official bond are not liable to the 
dependents of the deceased prisoner, upon 
the ground that the jailor was negligent in 
incarcerating him in a cell by himself with- 
out first searching him and removing from 
his person any object or article with which 
he might inflict injury upon himself or oth- 
ers, such as matches, and on the ground that 
the jailor did not respond to the drunken 
cries of the prisoner for help. Kendrick v. 
Adamson, 51 Ga. App. 402, 180 S.E. 647 
(1935). 

Sheriff's duty of safe confinement. — 
Custody of defendant, pending his trial un- 
der an indictment for criminal offense, is in 
the sheriff of the county wherein the offense 
was committed, and the responsibility for his 
safe and secure confinement in jail is that of 
the sheriff. Howington v. Wilson, 213 Ga. 
664, 100 S.E.2d 726 (1957). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, § 179. 63A Am. 
Jur. 2d, Public Officers and Employees, 
§ 487 et seq. 

C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, § 127. 



ALR. — Personal liability of policeman, 
sheriff, or similar peace officer on his bond, 
for injury suffered as a result of failure to 
enforce law or arrest lawbreaker, 41 ALR3d 
700. 



42-4-3. When coroner to act as keeper of jail. 

The county coroner shall be keeper of the jail when the sheriff is 
imprisoned or absent from the county leaving no deputy. (Orig. Code 1863, 
§ 564; Code 1868, § 628; Code 1873, § 587; Code 1882, § 587; Penal Code 
1895, § 1122; Penal Code 1910, § 1151; Code 1933, § 77-105.) 



120 



42-4-4 jails 42-4-4 

Cross references. — Coroners generally, 
Ch. 16, T. 45. 

RESEARCH REFERENCES 

C.J.S. — 80 CJ.S., Sheriffs and Constables, 
§§ 32, 38. 

42-4-4. Duties of sheriff as to jail inmates; designation of inmate as trusty; 
failure to comply with Code section. 

(a) It shall be the duty of the sheriff: 

(1) To take from the outgoing sheriff custody of the jail and the bodies 
of such persons as are confined therein, along with the warrant or cause 
of commitment; 

(2) To furnish persons confined in the jail with medical aid, heat, and 
blankets, to be reimbursed if necessary from the county treasury, for 
neglect of which he shall be liable to suffer the penalty prescribed in this 
Code section; provided, however, that, with respect to an inmate covered 
under Article 3 of this chapter, the officer in charge will provide such 
person access to medical aid and may arrange for the person's health 
insurance carrier to pay the health care provider for the aid rendered; 
and 

(3) To take all persons arrested or in execution under any criminal or 
civil process to the jail of an adjoining county, or to the jail of some other 
county if the latter is more accessible, if the jail of his county is in an 
unsafe condition, under such rules as are prescribed in this chapter. 

(b) Subject to the provisions of this subsection and except as provided by 
law or as directed by a court of competent jurisdiction, a sheriff shall not 
release a prisoner from his custody prior to the lawful completion of his 
sentence including any lawful credits under a trusty system. The provision 
shall not, however, preclude a sheriff from designating an inmate as a trusty 
and utilizing him in a lawful manner and, furthermore, this provision shall 
not preclude a sheriff from transferring a prisoner to another jail in 
another county if the sheriff concludes that such transfer is in the best 
interest of the prisoner or that such transfer is necessary for the orderly 
administration of the jail. 

(c) Any sheriff or deputy who fails to comply with this Code section shall 
be fined for contempt, as is the clerk of the superior court in similar cases. 
The sheriff or deputy shall also be subject to removal from office as 
prescribed in Code Section 15-6-82. (Laws 1799, Cobb's 1851 Digest, p. 574; 
Laws 1810, Cobb's 1851 Digest, p. 577; Laws 1818, Cobb's 1851 Digest, p. 
858; Laws 1820, Cobb's 1851 Digest, p. 480; Laws 1823, Cobb's 1851 Digest, 
p. 512; Code 1863, §§ 336, 340; Ga. L. 1865-66, p. 64, § 15; Code 1868, 

121 



42-4-4 



PENAL INSTITUTIONS 



42-4-4 



§§ 397, 401; Code 1873, §§ 361, 366; Code 1882, §§ 361, 366; Penal Code 
1895, §§ 1127, 1128; Penal Code 1910, §§ 1156, 1157; Code 1933, 
§§ 77-110, 77-111; Ga. L. 1990, p. 1443, § 1; Ga. L. 1992, p. 2125, § 1.) 



Code Commission notes. — Pursuant to 
Code Section 28-9-5, in 1990, "trusty" was 
substituted for "trustee" in subsection (b). 



Law reviews. — For note on 1992 amend- 
ment of this Code section, see 9 Ga. St. U.L. 
Rev. 310 (1992). 



JUDICIAL DECISIONS 



Legislative intent. — This section was not 
intended to require that the availability of 
health insurance was a precondition to ob- 
taining medical treatment for an inmate or 
that an inmate otherwise would be expected 
to pay for medical treatment received. Cher- 
okee County v. North Cobb Surgical Assocs., 
P.C., 221 Ga. App. 496, 471 S.E.2d 561 
(1996). 

Duty of care sheriff owes prisoners. — A 
sheriff owes to a prisoner placed in his 
custody a duty to keep the prisoner safely 
and free from harm, to render him medical 
aid when necessary, and to treat him hu- 
manely and refrain from oppressing him; 
and where a sheriff is negligent in his care 
and custody of a prisoner, and as a result the 
prisoner receives injury or meets his death, 
or where a sheriff fails in the performance of 
his duty to the prisoner, and the latter suffers 
injury or meets his death as a result of such 
failure, the sheriff would, in a proper case, 
be liable on his official bond, to the injured 
prisoner or to his dependents. Kendrick v. 
Adamson, 51 Ga. App. 402, 180 S.E. 647 
(1935). 

Removal from office. — Under this sec- 
tion and § 15-16-10, the provisions of 
§ 15-6-82, providing for the removal of 
clerks of the superior court from office, 
apply to the removal of sheriffs from office. 
Adamson v. Leathers, 60 Ga. App. 382, 3 
S.E.2d871 (1939). 

Under § 15-6-82, sheriffs are subject to be 
removed from office for "any sufficient 
cause," and sufficient cause means a cause 
relating to and affecting the administration 
of the office and material to the interests of 
the public. Adamson v. Leathers, 60 Ga. App. 
382, 3 S.E.2d 871 (1939). 



County's duty to use convicts for road 
work. — County has statutory authority to 
use its quota of convicts for constructing and 
maintaining its system of public roads, and it 
may also legally use convict labor for the 
purpose of doing any necessary work in or 
about its public works camps (now county 
correctional institutions). Newman v. 
Aldredge, 210 Ga. 765, 82 S.E.2d 823 (1954). 

Recovery of fee by physician. — Where a 
physician performs an operation on a pris- 
oner at request of sheriff, he cannot main- 
tain an action against the county to recover 
his fee. Nolan v. Cobb County, 141 Ga. 385, 
81 S.E. 124, 50L.R.A. (n.s.) 1223 (1914). 

Authority to transfer prisoner. — The 
sheriff, and not the judge of the court, has 
the authority to transfer a prisoner awaiting 
trial to a jail in another county, and then 
only when the jail in the county where the 
prisoner is confined is "in an unsafe condi- 
tion." Howington v. Wilson, 213 Ga. 664, 100 
S.E.2d 726 (1957). 

Court transferring prisoner to another 
jail. — Trial court may not, on its own 
motion, transfer prisoner to another jail 
where the court, without the issue being 
raised, concludes the local jail is not secure. 
In re Irvin, 254 Ga. 251, 328 S.E.2d 215 
(1985). 

Cited in Lumpkin County v. Davis, 185 Ga. 
393, 195 S.E. 169 (1938); Tate v. National 
Sur. Corp., 58 Ga. App. 874, 200 S.E. 314 
(1938); Moore v. Baldwin County, 209 Ga. 
541, 74 S.E.2d 449 (1953); Cole v. Holland, 
219 Ga. 227, 132 S.E.2d 657 (1963); 
Whiddon v. State, 160 Ga. App. 777, 287 
S.E.2d 114 (1982). 



122 



42-4-5 



JAILS 
OPINIONS OF THE ATTORNEY GENERAL 



42-4-5 



Board entering contract with county to 
house county prisoners. — Board of Of- 
fender Rehabilitation (Corrections) cannot 
enter into contract with a county to house 
county prisoners while county jail is being 
rebuilt. 1954-56 Op. Att'y Gen. p. 527. 

Expenditure of funds for parolee's medi- 
cal expenses. — The Board is not authorized 
to expend funds for payment of medical 
expenses of a parolee injured in an escape 
from custody of county law enforcement 
officials prior to revocation of parole; rather, 



such is the duty of the sheriff. 1971 Op. Att'y 
Gen. No. 71-120. 

Sheriffs' derivative duties. — As a natural 
concomitance of the duties imposed under 
this section and §§ 42-4-1 and 42-5-100, the 
sheriff would be responsible for calculating 
sentences of felony prisoners held in the 
county jail pending appeal, and would be 
the appropriate discharging authority 
should a sentence expire before a prisoner is 
transferred to the custody of state authori- 
ties. 1978 Op. Att'y Gen. No. U78-46. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, §§ 21-23. 

C.J.S. — 18 C.J.S., Convicts, §§ 10, 12. 72 
C.J.S., Prisons and Rights of Prisoners, 
§§ 16, 63 et seq., 80 et seq., §§ 124-126. 80 
C.J.S., Sheriffs and Constables, §§ 117, 
216(a), 216(b), 217-219, 231. 

ALR. — Personal liability of policeman, 
sheriff, or similar peace officer or his bond, 

42-4-5. Cruelty to inmates. 



for injury suffered as a result of failure to 
enforce law or arrest lawbreaker, 41 ALR3d 
700. 

Liability of prison authorities for injury to 
prisoner directly caused by assault by other 
prisoner, 41 ALR3d 1021. 

Civil liability of prison or jail authorities 
for self-inflicted injury or death of prisoner, 
79ALR3d 1210. 



(a) No jailer, by duress or other cruel treatment, shall make or induce an 
inmate to accuse or give evidence against another; nor shall he be guilty of 
willful inhumanity or oppression to any inmate under his care and custody. 

(b) Any jailer who violates subsection (a) of this Code section shall be 
punished by removal from office and imprisonment for not less than one 
year nor longer than three years. (Cobb's 1851 Digest, p. 805; Code 1863, 
§ 4367; Code 1868, § 4405; Code 1873, § 4473; Code 1882, § 4473; Penal 
Code 1895, § 282; Penal Code 1910, § 286; Code 1933, §§ 77-104, 
77-9901.) 



Cross references. — Prohibition against 
cruel and unusual punishment, U.S. Const., 



Amend. 8 and Ga. Const. 1983, Art. I, Sec. I, 
Para. XVII. 



JUDICIAL DECISIONS 



Duty of care sheriff owes prisoners. — A 

sheriff owes to a prisoner placed in his 
custody a duty to keep the prisoner safely 
and free from harm, to render him medical 
aid when necessary, and to treat him hu- 
manely and refrain from oppressing him; 
and where a sheriff is negligent in his care 



and custody of a prisoner and as a result the 
prisoner receives injury or meets his death, 
or where a sheriff fails in the performance of 
his duty to the prisoner and the latter suffers 
injury or meets his death as a result of such 
failure, the sheriff would, in a proper case, 
be liable on his official bond, to the injured 



123 



42-4-6 PENAL INSTITUTIONS 42-4-6 

prisoner or to his dependents. Kendrick v. incarcerating him in a cell by himself with- 

Adamson, 51 Ga. App. 402, 180 S.E. 647 out first searching him and removing from 

(1935). his person any object or article with which 

Liability of sheriff for prisoner's death. — he might inflict injury upon himself or oth- 

Where a prisoner has been placed in the ers, such as matches, and on the ground that 

custody of and accepted by a sheriff through the jailor did not respond to the drunken 

his deputy, the jailor of the county, and cr ies of the prisoner for help. Kendrick v. 

where the prisoner is drunk and as a result Adamson, 51 Ga. App. 402, 180 S.E. 647 

of his drunkenness sets fire to himself and is (1935). 

burned to death, the sheriff and the sureties Cited in i rwin v Arrendale, 117 Ga. App. 

on his official bond are not liable to the 1} 159 SE2 d 719 (1967); Jackson v. Zant, 

dependents of the deceased prisoner, upon 2 10 Ga. App. 581, 436 S.E.2d 771 (1993). 
the ground that the jailor was negligent in 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and prisoner directly caused by assault by other 

Correctional Institutions, §§ 21-23, 174, prisoner, 41 ALR3d 1021. 

196, 197. Duress, necessity, or conditions of confine- 

ALR. — Liability for death or injury to ment as justification for escape from prison, 

prisoner, 61 ALR 569. 69 ALR3d 678. 

Liability of prison authorities for injury to 

42-4-6. Confinement and care of tubercular inmates; crediting of time 
spent in hospital or institution against sentence. 

(a) When any person confined in the common jail who is awaiting trial 
for any offense against the penal laws of this state or who has been convicted 
of an offense or who is serving any jail sentence imposed upon him by 
authority or who has been committed for any civil or criminal contempt or 
who is serving any misdemeanor sentence under county jurisdiction in a 
county correctional institution or other institution for the maintenance of 
county inmates is afflicted with tuberculosis, the judge of the superior court 
may order the person's delivery by the sheriff to an institution as may be 
approved and supported by the Department of Human Resources for the 
care of tubercular patients; thereupon, he shall be so delivered and received 
in such institution and shall be securely confined, kept, and cared for. 

(b) The period of time a person is kept and confined in a hospital or 
institution pursuant to subsection (a) of this Code section shall be credited 
upon any jail sentence being served by him, in the same manner as though 
he had remained in jail. Any person committed for any civil or criminal 
contempt shall remain for all purposes under the orders, jurisdiction, and 
authority of the court committing him for contempt while in the hospital or 
institution, in the same manner as though he had remained in the common 
jail. (Ga. L. 1960, p. 769, § 2; Ga. L. 1964, p. 365, § 1; Ga. L. 1994, p. 97, 
§ 42.) 

Cross references. — Hospitalization of 
persons for tuberculosis, Ch. 14, T. 31. 

124 



42-4-7 JAILS 42-4-7 

OPINIONS OF THE ATTORNEY GENERAL 

Confinement of tubercular prisoners. — approved hospital, and confinement there 
When a prisoner is found to have tuberculo- will count toward his prison sentence. 1962 
sis, he will be sent to a state hospital or other Op. Att'y Gen. p. 383. 

RESEARCH REFERENCES 

C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, §§ 21, 138. 

42-4-7. Maintenance of inmate record by sheriff; good-time allowances. 

(a) The sheriff shall keep a record of all persons committed to the jail of 
the county of which he or she is sheriff. This record shall contain the name 
of the person committed, such person's age, sex, race, under what process 
such person was committed and from what court the process issued, the 
crime with which the person was charged, the date of such person's 
commitment to jail, the day of such person's discharge, under what order 
such person was discharged, and the court from which the order issued. 
This record shall be subject to examination by any person in accordance 
with the provisions of Article 4 of Chapter 18 of Tide 50, relating to the 
inspection of public records. 

(b) (1) The sheriff, chief jailer, warden, or other officer designated by 
the county as custodian of inmates confined as county inmates for 
probation violations of felony offenses or as provided in subsection (a) of 
Code Section 17-10-3 shall award good-time allowances to such inmates 
based on institutional behavior. Good-time allowances shall not be 
awarded which exceed one-half of the period of confinement imposed. 

(2) Upon receipt of an inmate sentenced to confinement as a county 
inmate, the custodian of such inmate shall compute the maximum 
good-time allowance that such inmate may earn. The custodian may 
make appropriate deductions from such maximum earnable good-time 
allowance based on the institutional behavior of such inmate while in 
custody as a county inmate. 

(3) An inmate sentenced to confinement as a county inmate shall be 
released at the expiration of his or her sentence less the time deducted 
for good-time allowances. 

(c) Commencing January 1, 1984, those provisions of subsection (b) of 
this Code section which provide for good-dme allowances to be awarded to 
inmates sentenced to confinement as county inmates as provided in 
subsection (a) of Code Section 17-10-3 shall apply to all such inmates in 
confinement on December 31, 1983, and all inmates who commit crimes on 
or after January 1, 1984, and are subsequently convicted and sentenced to 
confinement as county inmates. Conversion of the computation of the 

125 



42-4-7 



PENAL INSTITUTIONS 



42-4-7 



sentences of county inmates in confinement on December 31, 1983, from 
earned-time governed sentences to good-time governed sentences shall be 
made by the sheriff or other custodian of such inmates. Commencing July 
1, 1994, those provisions of subsection (b) of this Code section which 
provide for good-time allowances to be awarded to inmates sentenced to 
confinement as county inmates for probation violations of felony offenses 
shall apply to all such inmates in confinement on June 30, 1994, and all 
inmates whose probation is revoked or who commit crimes on or after July 
1, 1994, and are subsequently sentenced to confinement as county inmates. 
(Ga. L. 1877, p. Ill, § 1; Code 1882, § 366a; Penal Code 1895, § 1125; 
Penal Code 1910, § 1154; Code 1933, § 77-108; Ga. L. 1983, p. 1340, § 1; 
Ga. L. 1993, p. 632, § 1; Ga. L. 1994, p. 1955, § 1.) 



Code Commission notes. — Pursuant to 
Code Section 28-9-5, in 1994, "of felony 
offenses" was substituted for "of, felony of- 



fenses," in the first sentence of paragraph 
(1) of subsection (b). 



JUDICIAL DECISIONS 



Constitutionality of section. — This sec- 
tion is violative of the U.S. Const., Amend. 
14 to the extent that it requires segregation 
of the races in the prisons and jails of 
Georgia. Otherwise, it remains in full force 
and effect. Wilson v. Kelley, 294 F. Supp. 
1005 (N.D. Ga.), aff'd, 393 U.S. 266, 89 S. 
Ct. 477, 21 L. Ed. 2d 425 (1968). 

Administrative enforcement of good-time 
credit provisions. — The good-time credit 
provisions of this section work toward the 
end of encouraging good behavior among 



inmates while incarcerated. The provisions 
are directly related to the duties of adminis- 
tration and are affirmatively delegated to the 
custodians of inmates by the legislature. A 
trial court would therefore be without juris- 
diction to usurp this function by ordering 
that good-time credit be withheld until fines 
are paid. Davis v. State, 181 Ga. App. 498, 353 
S.E.2d7 (1987). 

Cited in Howington v. Wilson, 213 Ga. 
664, 100S.E.2d726 (1957). 



OPINIONS OF THE ATTORNEY GENERAL 



Automatic accrual of earned-time. — The 

custodian of a county inmate was not re- 
quired to take any affirmative action under 
former law to award earned-time, which was 
automatic. 1984 Op. Att'y Gen. No. U84-10. 

"Conversion" to good-time under subsec- 
tion (c) requires the custodian of an inmate 
in custody on December 31, 1983 to recom- 
pute the term of confinement by reducing 
that term by any period of time an inmate 
may have spent in a time-out status. 1984 Op. 
Att'y Gen. No. U84-10. 

Due process requirements for deduction 
of good-time. — Since deductions of 
good-time from county misdemeanor in- 



mates under paragraph (b)(2) amount to 
the deprivation of a liberty interest, the 
minimal procedures established by Wolff v. 
McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 
L. Ed. 2d 935 (1974), must be followed; 
therefore, an inmate is entided to (1) at least 
24 hours written notice of the charges 
against him, (2) a hearing at which the 
inmate may, consistent with the needs and 
good order of the prison, call witnesses and 
present evidence, and (3) a written state- 
ment by the fact finders as to the evidence 
relied upon and reasons for the disciplinary 
action. 1984 Op. Att'y Gen. No. U84-10. 



126 



42-4-8 JAILS 42-4-9 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and C.J.S. — 72 C.J.S., Prisons and Rights of 
Correctional Institutions, §§ 21-23, 222 et Prisoners, §§ 16, 144 et seq. 
seq. 

42-4-8. Inquiry into contents of inmate record by grand jury; failure to 
comply with Code Section 42-4-7. 

It shall be the duty of the grand jury, at each term of the superior court 
held in the county, to inquire into the contents of the record kept by the 
sheriff as required by Code Section 42-4-7. If the record is not kept or is 
incorrectly kept, the grand jury shall so report to the court. Upon the 
report's being made, the judge presiding shall cause the district attorney to 
have the sheriff served with a rule requiring him to show cause why he 
should not be punished for contempt. The judge shall inquire into the facts 
and, if he finds that Code Section 42-4-7 has not been complied with, he 
shall impose a fine of not less than $25.00 nor more than $50.00 for the first 
offense and not more than $100.00 and not less than $50.00 for each 
subsequent offense. The fines shall be enforced and collected by attach- 
ment, as in other cases of attachments against sheriffs. (Ga. L. 1877, p. Ill, 
§ 2; Code 1882, § 366b; Penal Code 1895, § 1126; Penal Code 1910, 
§ 1155; Code 1933, § 77-109; Ga. L. 1994, p. 97, § 42.) 

Cross references. — Frequency with 
which grand jury must perform duties, 
§ 15-12-71. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 38 Am. Jur. 2d, Grand Jury, C.J.S. — 72 C.J.S., Prisons and Rights of 

§§ 26-29. Prisoners, §§ 124, 128. 

42-4-9. Conditions for receipt of federal prisoners. 

The keeper of a county jail may decline to receive a person from the 
custody of anyone acting under the authority of the United States govern- 
ment. He may receive the person if the consent of the authority having 
control of county matters is first obtained. If the keeper receives the person 
he shall have the same duties and responsibilities toward him as in the case 
of inmates committed under the authority of this state. (Orig. Code 1863, 
§ 334; Code 1868, § 395; Code 1873, § 359; Code 1882, § 359; Ga. L. 1889, 
p. 47, § 2; Penal Code 1895, § 1123; Penal Code 1910, § 1152; Code 1933, 
§ 77-106.) 



127 



42-4-10 PENAL INSTITUTIONS 42-4-11 

JUDICIAL DECISIONS 

Liability for mistreatment of federal pris- of a state, who receives prisoners for the 

oner. — In the absence of this section there federal government, and is paid for their 

would be no liability on the part of a jailer maintenance, is an officer of the United 

for mistreatment of a United States prisoner States court. In re Birdsong, 39 F. 599 (S.D. 

whom a jailer is not required to receive. Tate Ga. 1889). See Erwin v. United States, 37 F. 

v. National Sur. Corp., 58 Ga. App. 874, 200 470 (S.D. Ga. 1889), rev'd on other grounds, 

S.E. 314 (1938). 47 U.S. 676, 13 S. Ct. 439, 37 L. Ed. 328 

Keeper of county jail officer of United (1893). 
States court. — The keeper of a county jail 

RESEARCH REFERENCES 

C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, § 4. 

42-4-10. Receipt of additional federal prisoners after initial acceptance. 

If the keeper of the jail consents to receive a person from the custody of 
federal authorities, as provided in Code Section 42-4-9, neither the jailer 
nor the county authorities shall refuse to receive any other person so 
committed by the authority of the United States government unless 20 days' 
prior written notice of the sheriff's refusal to receive any more persons 
committed by the federal authorities is given by him to the United States 
marshal or other federal officers charged with the custody of such persons. 
(Ga. L. 1889, p. 47, § 3; Penal Code 1895, § 1124; Penal Code 1910, 
§ 1153; Code 1933, § 77-107.) 

RESEARCH REFERENCES 

C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, § 4. 

42-4-1 1 . Procedure for transfer of person in custody upon change of venue. 

In all cases in which a change of venue is made, the sheriff of the county 
from which a person in custody is to be moved shall carry the person to the 
county to which the change of venue was directed and deliver him to the 
sheriff of such county, who shall then take charge of the person as in other 
cases. The sheriff of the county from which the person is to be moved shall 
carry with him and deliver to the sheriff the warrant under which the 
person was arrested or the commitment. (Ga. L. 1868, p. 133, § 1; Code 
1873, § 4688; Code 1882, § 4688; Penal Code 1895, § 1129; Penal Code 
1910, § 1158; Code 1933, § 77-112.) 

Cross references. — Change of venue 
generally, Ga. Const. 1983, Art. VI, Sec. II, 
Para. VIII and § 17-7-150 et seq. 



128 



42-4-12 JAILS 42-4-12 

JUDICIAL DECISIONS 

Official authorized to receive documents change is made; but the original indictment 

when change of venue granted. — Where in and other papers in the case are required to 

a criminal case a change of venue is granted, be sent to that county. Graham v. State, 143 

a certified copy of the order for that purpose Ga. 440, 85 S.E. 328, 191 7A Ann. Cas. 595 

is required to be transmitted to the clerk of (1915). 
the superior court of the county to which the 

42-4-12. Penalty for refusal by officer to receive persons charged with or 
guilty of offense. 

Except as otherwise provided in this Code section, any sheriff, constable, 
keeper of a jail, or other officer whose duty it is to receive persons charged 
with or guilty of an indictable offense who refuses to receive and take charge 
of such a person shall, upon conviction thereof, be guilty of a misdemeanor 
and shall be punished by a fine of not more than $1,000.00. A sheriff, 
constable, keeper of a jail, or other officer whose duty it is to receive persons 
charged with or guilty of an indictable offense shall be authorized to refuse 
acceptance of any person who has not received medical treatment for 
obvious physical injuries or conditions of an emergency nature. Upon such 
refusal, it shall be the responsibility of the arresting agency to take the 
individual to a health care facility or health care provider in order to secure 
a medical release. Upon medical release by the health care facility or health 
care provider, the sheriff, constable, or keeper of the jail must assume 
custody of the individual; provided, however, that in all cases the sheriff, 
constable, or keeper of the jail must assume custody where no health care 
facility is located in the county in which the arrest occurred and, in such 
instances, the governing authority of the arresting agency shall pay all costs 
related to the medical release. (Cobb's 1851 Digest, p. 807; Code 1863, 
§ 4380; Code 1868, § 4418; Code 1873, § 4486; Code 1882, § 4486; Penal 
Code 1895, § 285; Penal Code 1910, § 289; Code 1933, § 77-9902; Ga. L. 
1996, p. 1638, § 1.) 

The 1996 amendment, effective April 25, $1,000.00" for "be punished upon convic- 

1996, added the last three sentences; and, in tion thereof by confinement for not less than 

the first sentence, substituted "Except as two years nor longer than seven years and 

otherwise provided in this Code section, any shall be dismissed from office", 

sheriff, constable" for "Any sheriff, coroner, Law reviews. — For review of 1996 legisla- 

constable" and ", upon conviction thereof, tion relating to jails, see 13 Ga. U. L. Rev. 269 

be guilty of a misdemeanor and shall be anc j 273. 
punished by a fine of not more than 

JUDICIAL DECISIONS 

Implied right to refuse persons not fense, in that the only penalties provided are 

charged with indictable offense. — This sec- for refusal to receive persons charged with 

tion by implication gives sheriff a right to or guilty of indictable offenses." Tate v. Na- 

refuse to receive any prisoner who is not tional Sur. Corp., 58 Ga. App. 874, 200 S.E. 

charged with or guilty of an indictable of- 314 (1938). 

129 



42-4-13 PENAL INSTITUTIONS 42-4-13 

Sheriff of county has a statutory duty to 628, 261 S.E.2d 570 (1979). 
accept all city prisoners and the county Cited in Smith v. Glen Falls Indem. Co., 71 

commissioners have authority to require him Ga. App. 697, 32 S.E.2d 105 (1944). 
to do so. Griffin v. Chatham County, 244 Ga. 

OPINIONS OF THE ATTORNEY GENERAL 

No surcharge payment as condition of to a term of incarceration, and the sheriff 
serving sentence. — A sheriff must accept may not require payment of a surcharge as a 
into custody those individuals convicted of condition precedent to service of the sen- 
criminal offenses who have been sentenced tence. 1992 Op. Att'y Gen. No. U92-4. 

42-4-13. Possession of drugs, weapons, or alcohol by inmates. 

(a) As used in this Code section, the term: 

(1) "Alcoholic beverage" means and includes all alcohol, distilled 
spirits, beer, malt beverage, wine, or fortified wine. 

(2) "Controlled substance" means a drug, substance, or immediate 
precursor in Schedules III through V of Code Sections 16-13-27 through 
16-13-29. 

(3) "Dangerous drug" has the same meaning as defined by Code 
Section 16-13-71. 

(b) (1) Unless otherwise authorized by law, it shall be unlawful for an 
inmate of a jail to possess any controlled substance, dangerous drug, gun, 
pistol, or other dangerous weapon or any marijuana in a quantity of one 
ounce or less. 

(2) Any person who violates paragraph (1) of this subsection shall be 
guilty of a felony and, upon conviction thereof, shall be imprisoned for 
not less than one nor more than five years. 

(3) Notwithstanding the provisions of this subsection, possession of 
marijuana in a quantity greater than one ounce shall be punished as 
provided in Chapter 13 of Title 16. 

(c) (1) Unless otherwise authorized by law, it shall be unlawful for an 
inmate of a jail to possess any alcoholic beverage. 

(2) Any person who violates paragraph (1) of this subsection shall be 
guilty of a misdemeanor. 

(d) (1) It shall be unlawful for any person to come inside the guard lines 
established at any jail with, or to give or have delivered to an inmate of a 
jail, any alcoholic beverage, controlled substance, dangerous drug, or any 
marijuana in a quantity of one ounce or less, or any gun, pistol, or other 
dangerous weapon without the knowledge and consent of the sheriff or 
the sheriff's designated representative or a detention facility administra- 

130 



42-4-13 JAILS 42-4-13 

tor or his or her designee; provided, however, that the provisions of this 
subsection shall not apply to nor prohibit the use of an alcoholic beverage 
by a clergyman or priest in sacramental services only. 

(2) Except as otherwise provided in paragraph (3) of this subsection, 
any person who violates paragraph (1) of this subsection shall be guilty of 
a felony and, upon conviction thereof, shall be imprisoned for not less 
than one nor more than five years. 

(3) Notwithstanding the provisions of paragraph (2) of this subsec- 
tion, the possession or distribution of a controlled substance or mari- 
juana in a quantity greater than one ounce shall be punished as provided 
in Chapter 13 of Title 16. (Code 1981, § 42-4-13, enacted by Ga. L. 1987, 
p. 611, § 1; Ga. L. 1993, p. 630, § 1.) 

Code Commission notes. — Pursuant to Law reviews. — For note on 1993 amend- 

Code Section 28-9-5, in 1989, the subsection ment of this section, see 10 Ga. St. U.L. Rev. 

(a) designation was added at the beginning 181 (1993). 
of this Code section. 

OPINIONS OF THE ATTORNEY GENERAL 

Fingerprintable offense. — Violation of time designated as an offense for which 

subsection (c), which provides that it is a those charged with a violation are to be 

misdemeanor for an inmate of a jail to fingerprinted. 1987 Op. Att'y Gen. No. 

possess any alcoholic beverage, is not at this 87-21. 

RESEARCH REFERENCES 

C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, §§ 61, 62, 75. 

ARTICLE 2 

CONDITIONS OF DETENTION 

OPINIONS OF THE ATTORNEY GENERAL 

Article does not repeal Ch. 2, T. 25. — cle, apparently did not intend to impliedly 

While this article deals, in part, with the amend Ch. 2, T. 25 and such construction is 

same subject matter as the fire safety stan- not necessary for a reasonable interpreta- 

dards set forth in Ch. 2, T. 25 for certain jails, tion of this article. 1980 Op. Att'y Gen. No. 

the General Assembly, in enacting this arti- 80-66. 

RESEARCH REFERENCES 

Am. Jut. 2d. — 60 Am. Jur. 2d, Penal and ALR. — Sex discrimination in treatment 

Correctional Institutions, §§ 87-89, 91-97, of jail or prison inmates, 12 ALR4th 1219. 
110, 174 et seq. Mandamus, under 28 USC § 1361, to ob- 

C.J.S. — 72 C.J.S. , Prisons and Rights of tain change in prison condition or release of 

Prisoners, §§ 61-90, 124-129. federal prisoner, 114 ALR Fed. 225. 

131 



42-4-30 PENAL INSTITUTIONS 42-4-31 

42-4-30. Definitions. 

As used in this article, the term: 

(1) "Detention facility" means a municipal or county jail used for the 
detention of persons charged with or convicted of either a felony, a 
misdemeanor, or a municipal offense. 

(2) "Inmate" means a person who is detained in a detention facility by 
reason of being charged with or convicted of a felony, a misdemeanor, or 
a municipal offense. 

(3) "Officer in charge" means the sheriff, if the detention facility is 
under his supervision, or the warden, captain, or superintendent having 
the supervision of any other detention facility. (Ga. L. 1973, p. 890, § 1; 
Ga. L. 1985, p. 149, § 42.) 

JUDICIAL DECISIONS 

Cited in Cherokee County v. North Cobb 
Surgical Assocs., P.C., 221 Ga. App. 496, 471 
S.E.2d561 (1996). 

42-4-31. Required safety and security measures. 

(a) It shall be unlawful for any person having charge of or responsibility 
for any detention facility to incarcerate any person in the detention facility 
unless a full-time jailer is on duty at the detention facility at all times while 
a person is incarcerated therein. For purposes of this Code section, a 
full-time dispatcher may also serve simultaneously as a full-time jailer in the 
case of: 

(1) A municipal detention facility with 12 or fewer inmates incarcer- 
ated therein if such dispatcher either: 

(A) Is equipped with mobile telephone and radio equipment which 
will allow such dispatcher to perform the duties of a dispatcher and the 
duties of a full-time jailer at the same time; or 

(B) Is provided with temporary assistance or relief from the duties 
of a dispatcher while performing the duties of a jailer; or 

(2) A municipal detention facility of a municipal corporation having & 
population of 6,000 or less if such dispatcher is certified both as a jailer 
and a dispatcher by the Georgia Peace Officer Standards and Training 
Council. 

(b) If the local governing authority having jurisdiction over a detention 
facility has knowledge that the facility is operating without a full-time jailer 
on duty while persons are incarcerated therein, each member of the local 

132 



42-4-32 jails 42-4-32 

governing authority having such knowledge and failing to attempt to 
correct the deficiency shall be in violation of this article. 

(c) The officer in charge of a detention facility shall have the facility 
inspected semiannually by an officer from the state fire marshal's office or 
an officer selected by the Safety Fire Commissioner. Each detention facility 
shall be required to comply with this article with regard to fire safety and the 
applicable rules and regulations promulgated by the Safety Fire Commis- 
sioner. The inspecting officer shall fill out a form provided by the officer in 
charge and the form shall be posted in a conspicuous place by the officer 
in charge, thereby evidencing inspection of the facility. 

(d) There shall be at least two separate keys for all locks at a detention 
facility, with one set in use and all duplicate keys safely stored under the 
control of a jailer or other administrative employee for emergency use. All 
security personnel must be familiar with the locking system of the detention 
facility and must be able immediately to release inmates in the event of a fire 
or other emergency. Regular locking and unlocking of door and fire escape 
locks shall be made to determine if they are in good working order. Any 
damaged or nonfunctioning security equipment shall be promptly repaired. 
(Ga. L. 1973, p. 890, § 2; Ga. L. 1990, p. 1371, § 1; Ga. L. 1991, p. 1009, 
§ 1.) 

Cross references. — Liability of sheriffs lation of fire hazards to persons and prop- 
for misconduct of jailers, § 15-16-24. Regu- erty generally, Ch. 2, T. 25. 

RESEARCH REFERENCES 

ALR. — Liability for death or injury to 
prisoner, 61 ALR 569. 

42-4-32. Sanitation and health requirements generally, meals; inspections; 
medical treatment. 

(a) All aspects of food preparation and food service shall conform to the 
applicable standards of the Department of Human Resources. 

(b) All inmates shall be given not less than two substantial and whole- 
some meals daily. 

(c) Sanitation inspections of both facilities and inmates shall be made as 
frequendy as is necessary to ensure against the presence of unsanitary 
conditions. An official from the Department of Human Resources or an 
officer designated by the commissioner of human resources shall inspect 
the facilities at least once every three months. New inmates should be 
carefully classified, with adequate separation and treatment given as 
needed. 

(d) The officer in charge or his designated representative shall assure 
that each inmate is observed daily, and a physician shall be immediately 

133 



42-4-33 PENAL INSTITUTIONS 42-4-50 

called if there are indications of serious injury, wound, or illness. The 
instructions of the physician shall be strictly carried out. Ill inmates shall be 
furnished such food as is prescribed by the attending physician. (Ga. L. 
1973, p. 890, § 3; Ga. L. 1977, p. 761, § 1; Ga. L. 1990, p. 135, § 2.) 

Cross references. — Authority of grand § 15-12-78. Liability of sheriffs for miscon- 
juries to inspect sanitary conditions in jails, duct of jailers, § 15-16-24. 

42-4-33. Penalty for violations of article. 

Any person who violates this article shall be guilty of a misdemeanor. (Ga. 
L. 1973, p. 890, § 4.) 

ARTICLE 3 
MEDICAL SERVICES FOR INMATES 

Code Commission notes. — Ga. L. 1992, Pursuant to Code Section 28-9-5, in 1992, the 
p. 2125, § 2, and Ga. L. 1992, p. 2942, § 1, article enacted by Ga. L. 1992, p. 2942, § 1, 
both enacted a new Article 3 of Chapter 4. was redesignated Article 4 of Chapter 4. 

42-4-50. Definitions. 

As used in this article, the term: 

(1) "Detention facility" means a municipal or county jail used for the 
detention of persons charged with or convicted of either a felony, a 
misdemeanor, or a municipal offense. 

(2) "Governing authority" means the governing authority of the 
county or municipality in which the detention facility is located. 

(3) "Inmate" means a person who is detained in a detention facility by 
reason of being charged with or convicted of a felony, a misdemeanor, or 
a municipal offense. Such term does not include any sentenced inmate 
who is the responsibility of the State Department of Corrections. 

(4) "Medical care" includes medical attention, dental care, and 
medicine and necessary and associated costs such as transportation, 
guards, room, and board. 

(5) "Officer in charge" means the sheriff, if the detention facility is 
under his or her supervision, or the warden, captain, or superintendent 
having the supervision of any other detention facility. (Code 1981, 
§ 42-4-50, enacted by Ga. L. 1992, p. 2125, § 2; Ga. L. 1995, p. 1059, § 1; 
Ga. L. 1996, p. 1081, § 1; Ga. L. 1996, p. 1264, § 1.) 

The 1995 amendment, effective July 1, The 1996 amendments. — The first 1996 

1995, inserted ", workcamp, or other munic- amendment, effective July 1, 1996, deleted ", 

ipal or county detention facility" in para- workcamp, or other municipal or county 

graph (1) of subsection (a). detention facility" following "county jail" in 

134 



42-4-51 JAILS 42-4-51 

paragraph (1) of subsection (a). The second group health insurance, or prepaid medical 
1996 amendment, effective July 1, 1996, care coverage or is eligible for benefits un- 
deleted the subsection (a) designation at the der Article 7 of Chapter 4 of Title 49, the 
beginning; made identical changes to those 'Georgia Medical Assistance Act of 1977.'" 
made by the first amendment in paragraph at the end of the first sentence in paragraph 
(1); added present paragraphs (2) and (4); (3); and inserted "or her" in paragraph (5). 
redesignated former paragraphs (2) and (3) Law reviews. — For note on 1992 enact- 
as paragraphs (3) and (5), respectively; in- ment of this Code section, see 9 Ga. St. U.L. 
serted a period following "municipal of- Rev. 310 (1992). For review of 1996 legisla- 
fense" and deleted "and who is insured tion relating to jaUs, see 13 Ga. St. U. L. Rev. 
under existing individual health insurance, 269 and 273. 

JUDICIAL DECISIONS 

Cited in Cherokee County v. North Cobb 
Surgical Assocs., P.C., 221 Ga. App. 496, 471 
S.E.2d561 (1996). 

42-4-51. Information as to inmate's health insurance or eligibility for 
benefits; access to medical services; liability for payment; inmate's 
liability for costs of medical care; procedure for recovery against 
inmate. 

(a) The officer in charge or his or her designee may require an inmate 
to furnish the following information: 

(1) The existence of any health insurance, group health plan, or 
prepaid medical care coverage under which the inmate is insured; 

(2) The eligibility for benefits to which the inmate is entitled under 
Article 7 of Chapter 4 of Title 49, the "Georgia Medical Assistance Act of 
1977"; 

(3) The name and address of the third-party payor; and 

(4) The policy or other identifying number. 

(b) The officer in charge will provide a sick, injured, or disabled inmate 
access to medical services and may arrange for the inmate's health 
insurance carrier to pay the health care provider for the medical service 
rendered. 

(c) The liability for payment for medical care described under subsec- 
tion (b) of this Code section may not be construed as requiring payment by 
any person or entity, except by an inmate personally or his or her carrier 
through coverage or benefits described under paragraph (1) of subsection 
(a) of this Code section. 

(d) If an inmate is not eligible for such health insurance benefits, then 
the inmate shall be liable for the costs of such medical care provided to the 
inmate and the assets and property of such inmate may be subject to levy 
and execution under court order to satisfy such costs. An inmate in a 

135 



42-4-51 PENAL INSTITUTIONS 42-4-51 

detention facility shall cooperate with the governing authority in seeking 
reimbursement under this article for medical care expenses incurred by the 
governing authority for that inmate. An inmate who willfully refuses to 
cooperate as provided in this Code section shall not receive or be eligible to 
receive any good-time allowance or other reduction of time to be served. 

(e) (1) An attorney for a governing authority may file a civil action to 
seek reimbursement from an inmate for the costs of medical care 
provided to such inmate while incarcerated. 

(2) A civil action brought under this article shall be instituted in the 
name of the governing authority and shall state the date and place of 
sentence, the medical care provided to such inmate, and the amount or 
amounts due to the governing authority pursuant to this Code section. 

(3) If necessary to protect the governing authority's right to obtain 
reimbursement under this article against the disposition of known 
property, the governing authority may seek issuance of an ex parte 
restraining order to restrain the defendant from disposing of the 
property pending a hearing on an order to show cause why the particular 
property should not be applied to reimbursement of the governing 
authority for the costs of medical care provided to the defendant as an 
inmate. 

(4) To protect and maintain the property pending resolution of the 
matter, the court, upon request, may appoint a receiver. 

(f ) Before entering any order on behalf of the governing authority 
against the defendant, the court shall take into consideration any legal 
obligation of the defendant to support a spouse, minor children, or other 
dependents and any moral obligation to support dependents to whom the 
defendant is providing or has in fact provided support. 

(g) The court may enter a money judgment against the defendant and 
may order that the defendant's property is liable for reimbursement for the 
costs of medical care provided to the defendant as an inmate. 

(h) The sentencing judge and the sheriff of any county in which a 
prisoner's property is located shall furnish to the attorney for the governing 
authority all information and assistance possible to enable the attorney to 
secure reimbursement for the governing authority under this article. 

(i) The reimbursements secured under this article shall be credited to 
the general fund of the governing authority to be available for general fund 
purposes. The treasurer of such governing authority may determine the 
amount due the governing authority under this article and render sworn 
statements thereof. These sworn statements shall be considered prima-facie 
evidence of the amount due. 

(j) Nothing in this Code section shall be construed to relieve the 
governing authority, governmental unit, subdivision, or agency having the 

136 



42-4-70 jails 42-4-70 

physical custody of an inmate from its responsibility to pay for any medical 
and hospital care rendered to such inmate regardless of whether such 
individual has been convicted of a crime. (Code 1981, § 42-4-51, enacted by 
Ga. L. 1992, p. 2125, § 2; Ga. L. 1996, p. 1264, § 2.) 

The 1996 amendment, effective July 1, to paragraph (2) of subsection (a) of this 
1996, inserted "or her" in subsections (a) Code section" at the end of subsection (c). 
and (c) and added subsections (d) through Code Commission notes. — Pursuant to 
(j). The 1996 legislation did not reenact the Code Section 28-9-5, in 1992, "third-party" 
language "or by or at the direction of the was substituted for "third party" in para- 
Department of Medical Assistance pursuant graph (3) of subsection (a). 

JUDICIAL DECISIONS 

Cited in Cherokee County v. North Cobb 
Surgical Assocs., P.C., 221 Ga. App. 496, 471 
S.E.2d561 (1996). 

ARTICLE 4 
DEDUCTIONS FROM INMATE ACCOUNTS FOR EXPENSES 

Code Commission notes. — Ga. L. 1992, Pursuant to Code Section 28-9-5, in 1992, the 
p. 2125, § 2, and Ga. L. 1992, p. 2942, § 1, article enacted by Ga. L. 1992, p. 2942, § 1, 
both enacted a new Article 3 of Chapter 4. was redesignated Article 4 of Chapter 4. 

42-4-70. Definitions. 

As used in this article, the term: 

(1) "Detention facility" means a municipal or county jail used for the 
detention of persons charged with or convicted of either a felony, a 
misdemeanor, or a municipal offense. 

(2) "Inmate" means a person who is detained in a detention facility by 
reason of being charged with or convicted of a felony, a misdemeanor, or 
a municipal offense. 

(3) "Medical treatment" means each visit initiated by the inmate to an 
institutional physician; physician's extender, including a physician's assis- 
tant or a nurse practitioner; dentist; optometrist; or psychiatrist for 
examination or treatment. 

(4) "Officer in charge" means the sheriff, if the detention facility is 
under his supervision, or the warden, captain, or superintendent having 
the supervision of any other detention facility. (Code 1981, § 42-4-70, 
enacted by Ga. L. 1992, p. 2942, § 1; Ga. L. 1995, p. 1059, § 2; Ga. L. 
1996, p. 1081, § 2.) 

The 1995 amendment, effective July 1, ipal or county detention facility" in para- 
1995, inserted ", workcamp, or other munic- graph (1). 

137 



42-4-71 PENAL INSTITUTIONS 42-4-71 

The 1996 amendment, effective July 1, tion (a), and the amendment is deemed to 

1996, deleted ", workcamp, or other munic- apply to paragraph (1) following the 

ipal or county detention facility" following undesignated introductory paragraph, 

"county jail" in paragraph (1). Law reviews. — For note on 1992 enact- 

Editor's notes. — Ga. L. 1995, p. 1059, ment of this Code section, see 9 Ga. St. U.L. 

effective July 1, 1995, purported to amend Rev. 310 (1992). For review of 1996 legisla- 

paragraph (1) of subsection (a); however, tion relating to jails, see 13 Ga. St. U. L. Rev. 

this Code section does not contain a subsec- 269 and 273. 

JUDICIAL DECISIONS 

Cited in Cherokee County v. North Cobb 
Surgical Assocs., P.C., 221 Ga. App. 496, 471 
S.E.2d561 (1996). 

42-4-7 1. Deduction of costs from inmate's account for destruction of 
property, medical treatment, and other causes; exception for 
certain medical costs. 

(a) The officer in charge may establish by rules or regulations criteria for 
a reasonable deduction from money credited to the account of an inmate 
to: 

(1) Repay the costs of: 

(A) Public property willfully damaged or destroyed by the inmate 
during his incarceration; 

(B) Medical treatment for injuries inflicted by the inmate upon 
himself or others; 

(C) Searching for and apprehending the inmate when he escapes or 
attempts to escape; such costs to be limited to those extraordinary costs 
incurred as a consequence of the escape; or 

(D) Quelling any riot or other disturbance in which the inmate is 
unlawfully involved; 

(2) Defray the costs paid by a municipality or county for medical 
treatment for an inmate, which medical treatment has been requested by 
the inmate, provided that such deduction from money credited to the 
account of an inmate shall not exceed $5.00 for each such occurrence of 
treatment received by the inmate at the inmate's request; provided, 
further, that if the balance in an inmate's account is $10.00 or less, such 
fee shall not be charged; and provided, further, that in the event that the 
costs of medical treatment of an inmate have been collected from said 
inmate pursuant to Code Section 42-4-51, there shall be no deductions 
from money credited to the account of an inmate under the provisions of 
this paragraph for the cost of such medical treatment. 

(b) The provisions of paragraph (2) of subsection (a) of this Code 
section shall not apply in any case where an officer of the detention facility 

138 



42-4-90 jails 42-4-91 

or a medical practitioner determines that an inmate is in need of medical 
treatment. 

(c) All sums collected for medical treatment shall be reimbursed to the 
inmate if such inmate is acquitted or otherwise exonerated of all charges for 
which the inmate was being held. (Code 1981, § 42-4-71, enacted by Ga. L. 
1992, p. 2942, § 1; Ga. L. 1993, p. 304, § 1; Ga. L. 1996, p. 1264, § 3.) 

The 1996 amendment, effective July 1, Code Commission notes. — Pursuant to 

1996, added the last proviso at the end of Code Section 28-9-5, in 1996, "and provided, 

paragraph (2) of subsection (a). further, that in the evenr was substituted for 

Cross references. — Repayment of costs "provided, however, that in the event" in 

as condition of probation, § 42-8-35(8). paragraph (a)(2). 

ARTICLE 5 
REGIONAL JAIL AUTHORITIES 

Effective date. — This article became ef- 
fective April 7, 1995. 

42-4-90. Short tide. 

This article shall be known and may be cited as the "Regional Jail 
Authorities Act." (Code 1981, § 42-4-90, enacted by Ga. L. 1995, p. 292, 
§ 1.) 

42-4-91. Statement of authority; policy of state. 

(a) This article is enacted pursuant to authority granted to the General 
Assembly by the Constitution of Georgia. Each authority created by this 
article is created for nonprofit and public purposes; and it is found, 
determined, and declared that the creation of each such authority and the 
carrying out of its corporate purposes is in all respects for the benefit of the 
people of this state and that the authority is an institution of purely public 
charity and will be performing an essential governmental function in the 
exercise of the power conferred upon it by this article. For such reasons, the 
state covenants from time to time with the holders of the bonds issued 
under this article that such authority shall be required to pay no taxes or 
assessments imposed by the state or any of its counties, municipal corpora- 
tions, political subdivisions, or taxing districts upon any property acquired 
by the authority or under its jurisdiction, control, possession, or supervision 
or leased by it to others; or upon its activities in the operation or 
maintenance of any such property; or upon any rentals, charges, purchase 
price, installments, or otherwise; and that the bonds of such authority, their 
transfer, and the income therefrom shall at all times be exempt from 
taxation within the state. The tax exemption provided in this Code section 
shall include exemption from sales and use tax on property purchased by 
the authority or for use by the authority. 

139 



42-4-92 PENAL INSTITUTIONS 42-4-92 

(b) It is the express policy of the State of Georgia that any authority 
created by this article shall be authorized to enter into agreements with any 
county or municipality within the same county as the regional jail authority 
for the purpose of building, owning, and operating a jail facility for the 
county or municipality. (Code 1981, § 42-4-91, enacted by Ga. L. 1995, p. 
292, § 1; Ga. L. 1996, p. 1098, § 1.) 

The 1996 amendment, effective July 1, jail authority" and added "or municipality" 
1996, in subsection (b), inserted "or munic- at the end. 
ipality within the same county as the regional 

42-4-92. Definitions. 

As used in this article, the term: 

(1) "Authority" means each public body corporate and politic created 
pursuant to this article. 

(2) "Cost of project" means all costs of site preparation and other 
start-up costs; all costs of construction; all costs of real and personal 
property required for the purposes of the jail facilities related thereto, 
including land and any rights or undivided interest therein, easements, 
franchises, fees, permits, approvals, licenses, and certificates and the 
securing of such permits, approvals, licenses, and certificates and all 
machinery and equipment, including motor vehicles which are used for 
jail functions; financing charges and interest prior to and during 
construction and during such additional period as the authority may 
reasonably determine to be necessary for the placing of the jail in 
operation; costs of engineering, architectural, and legal services; cost of 
plans and specifications and all expenses necessary or incident to 
determining the feasibility or practicability of the jail; administrative 
expenses; and such other expenses as may be necessary or incidental to 
the financing authorized in this article. The costs of any jail may also 
include funds for the creation of a debt service reserve, a renewal and 
replacement reserve, and such other reserves as may be reasonably 
required by the authority for the operation of any jail and as may be 
authorized by any bond resolution or trust agreement or indenture 
pursuant to the provisions of which the issuance of any such bonds may 
be authorized. Any obligation or expense incurred for any of the 
foregoing purposes shall be regarded as a part of the costs of the jail and 
may be paid or reimbursed as such out of the proceeds of user fees, or 
revenue bonds or notes issued under this article for such jail, or from 
other revenues obtained by the authority. 

(3) "County" means any county of this state or governmental entity 
formed by the consolidation of a county and one or more municipal 
corporations. 

(4) "County regional jail authority" means a regional jail authority 
formed by counties pursuant to this article. 

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42-4-93 jails 42-4-93 

(5) "Governing body" means the elected or duly appointed officials 
constituting the governing body of each county in the state. 

(6) "Management committee" means a regional jail authority man- 
agement committee created pursuant to Code Section 42-4-95. 

(7) "Municipal regional jail authority" means a regional jail authority 
formed by municipalities within the same county pursuant to this article. 

(8) "Municipality" means any municipal corporation of this state. 

(9) "Project" means a jail and all other structures including electric, 
gas, water, and other utilities and facilities, equipment, personal property, 
and vehicles which are deemed by the authority as necessary and 
convenient for the operation of the jail. (Code 1981, § 42-4-92, enacted 
by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 2; Ga. L. 1997, p. 143, 
§ 42.) 

The 1996 amendment, effective July 1, The 1997 amendment, effective March 28, 

1996, added present paragraphs (4), (7) and 1997, part of an Act to correct errors and 

(8), and redesignated paragraphs (4), (5), omissions in the Code, redesignated para- 

and (6) as paragraphs (5), (6), and (9), graphs (7) and (8) as paragraphs (8) and 

respectively. (7), respectively. 

42-4-93. Creation of authorities; ordinance or resolution required; agree- 
ment; approval of sheriff; exemption from Georgia State Financing 
and Investment Commission Act. 

(a) Any two or more counties may jointly form an authority, to be known 
as the county regional jail authority for such counties. Any two or more 
municipalities within the same county may jointly form an authority, to be 
known as the municipal regional jail authority for such municipalities. 
Municipalities located in more than one county may participate in munic- 
ipal regional jail authorities in each county in which the municipality is 
located. No authority shall transact any business or exercise any powers 
under this article until the governing authorities of the counties or 
municipalities involved declare, by ordinance or resolution, that there is a 
need for an authority to function and until the governing authorities 
authorize the chief elected official of each county or municipality to enter 
into an agreement with the other counties or municipalities participating in 
the authority for the activation of an authority and such agreement is 
executed. Such authorities shall be public bodies, corporate and politic, 
and instrumentalities of the State of Georgia. A copy of the ordinance or 
resolution and agreement among participant counties or participant mu- 
nicipalities shall be filed with the Secretary of State who shall maintain a 
record of all authority activities under this article. 

(b) No county may be included in an authority without approval of the 
sheriff of the participant county. 

141 



42-4-94 PENAL INSTITUTIONS 42-4-94 

(c) Article 2 of Chapter 17 of Title 50, the "Georgia State Financing and 
Investment Commission Act," shall not apply to any authority created 
under this Code section. (Code 1981, § 42-4-93, enacted by Ga. L. 1995, p. 
292, § 1; Ga. L. 1996, p. 1098, § 3.) 

The 1996 amendment, effective July 1, "counties or municipalities participating in 

1996, in subsection (a), inserted "county" in the authority" for "county or counties" in 

the first sentence; added the second and the fourth sentence; and added "or partici- 

third sentences; inserted "or municipalities" pant municipalities" in the last sentence, 
and "or municipality" and substituted 

42-4-94. Board of directors; members; election of officers; expenses; 
duties; addition of counties or municipalities to authority. 

(a) Control and management of the authority shall be vested in a board 
of directors. Each county participating in an authority shall appoint the 
sheriff of the county for the term of such sheriff's office. One other 
member from each participating county shall be appointed for a four-year 
term. Each municipality participating in an authority shall appoint two 
people to serve on the board of directors, each for a four-year term. For 
each county or municipal regional jail authority board of directors, an 
additional member shall be appointed by the directors themselves. The 
directors shall elect one of their members as chairperson and another as 
vice chairperson and shall also elect a secretary and a treasurer or a 
secretary-treasurer, either of whom may, but need not be, a director. The 
directors shall receive no compensation for their services but shall be 
reimbursed for actual expenses incurred in the performance of their duties. 
The directors may make bylaws and regulations for the governing of the 
authority and may delegate to one or more of the officers, agents, and 
employees of the authority such powers and duties as may be deemed 
necessary and proper. 

(b) It is the duty of the board of directors to erect or repair, when 
necessary, the jail and to furnish the jail with all the furniture necessary for 
the different rooms, offices, and cells. The jail shall be erected and kept in 
order and repaired at the expense of the authority under the direction of 
the board of directors which is authorized to make all necessary contracts 
for that purpose. The board of directors shall pass an annual budget 
sufficient for the efficient and effective operation of the jail. 

(c) Members of the board of directors of an authority formed pursuant 
to this Code section may agree that additional counties, if a county regional 
jail authority, or additional municipalities, if a municipal regional jail 
authority, may become members of such authority subsequent to its 
formation upon an affirmative vote of two-thirds of the members of such 
board of directors under such terms as may be imposed by such two-thirds 
of the members of such board of directors. (Code 1981, § 42-4-94, enacted 
by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 4.) 

142 



42-4-95 JAILS 42-4-96 

The 1996 amendment, effective July 1, additional" for "An additional" at the begin- 

1996, in subsection (a), substituted "an au- ning of the fifth sentence; and inserted ", if 

thority" for "the authority" in the second a county regional jail authority, or additional 

sentence; added the fourth sentence; and municipalities, if a municipal regional jail 

substituted "For each county or municipal authority," in subsection (c). 
regional jail authority board of directors, an 

42-4-95. Management committee of county regional jail authority; manage- 
ment and operation of municipal regional jail authority. 

(a) The jail of a county regional jail authority shall be managed and 
operated by a regional jail authority management committee composed of 
all of the sheriffs from the participant counties. The county regional jail 
authority management committee shall have all of the responsibilities 
provided in Code Section 15-16-24 and this chapter, including the employ- 
ment and supervision of all personnel employed to operate the jail. The 
sheriffs shall elect one of their members as chairperson and another as vice 
chairperson and shall also elect a secretary who may or may not be a 
member of the committee. The committee shall receive no compensation 
for their services but shall be reimbursed for actual expenses incurred in 
the performance of their duties. The committee may delegate to one or 
more of the officers, agents, and employees of the committee such powers 
and duties as may be deemed necessary and proper. 

(b) In the event that the county regional jail authority consists of an even 
number of counties, the sheriffs shall then elect one member, who may or 
may not be a member of the authority's board of directors, to serve on the 
management committee. 

(c) The board of directors of a municipal regional jail authority shall 
hire or contract with a person, firm, corporation, or local government to 
manage and operate the regional jail. Such person, firm, corporation, or 
local government shall have all of the responsibilities provided in this 
chapter for municipal jails and jailers, including the employment and 
supervision of all personnel employed to operate the jail. (Code 1981, 
§ 42-4-95, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 5.) 

The 1996 amendment, effective July 1, of the second sentence; inserted "county 

1996, in subsection (a), inserted "of a regional jail" in subsection (b); and added 

county regional jail authority" in the first subsection (c). 
sentence and "county" near the beginning 

42-4-96. Quorums; voting requirements. 

(a) A majority of the board of directors shall constitute a quorum for the 
transaction of business of the authority. However, any action with respect to 
any project of the authority must be approved by the affirmative vote of not 
less than a majority of the directors. 

143 



42-4-97 PENAL INSTITUTIONS 42-4-97 

(b) A majority of the regional jail authority management committee shall 
constitute a quorum for the transaction of business of the management 
committee. (Code 1981, § 42-4-96, enacted by Ga. L. 1995, p. 292, § 1.) 

42-4-97. Powers of authority. 

Each authority shall have all the powers necessary or convenient to carry 
out and effectuate the purposes and provisions of this article, including, but 
without limiting the generality of the foregoing, the power: 

(1) To bring and defend actions except to the extent the authority has 
governmental immunity, venue being located in the host county of any 
project of the authority. The authority shall have no governmental 
immunity against suits by bondholders or their investors; 

(2) To adopt and amend the corporate seal; 

(3) To acquire, construct, improve, or modify, to place into operation, 
or to operate or cause to be placed in operation and operated, a jail or 
jails within the counties in which the authority is activated and subject to 
execution of agreements with appropriate political subdivisions affected 
within other counties or municipalities and to pay all or part of the cost 
of any such jail or jails from the proceeds of revenue bonds of the 
authority or from any contribution or loan by persons, firms, or corpo- 
rations or from any other contribution or use fees, all of which the 
authority is authorized to receive, accept, and use; 

(4) To acquire, in its own name, by purchase on such terms and 
conditions and in such manner as it may deem proper, or by condemna- 
tion in accordance with any and all laws applicable to the condemnation 
of property for public use, or by gift, grant, lease, or otherwise, real 
property or rights and easements therein and franchises and personal 
property necessary or convenient for its corporate purposes, which 
purposes shall include, but shall not be limited to, the constructing or 
acquiring of a jail or jails; the improving, extending, adding to, recon- 
structing, renovating, or remodeling of any jail or jails or parts thereof 
already constructed or acquired; or the demolition to make room for 
such jail or any part thereof and to insure the same against any and all 
risks as such insurance may, from time to time, be available. The authority 
may also use such property and rent or lease the same to or from others 
or make contracts with respect to the use thereof or sell, lease, exchange, 
transfer, assign, pledge, or otherwise dispose of or grant options for any 
such property in any manner which the authority deems to the best 
advantage of itself and its purposes, provided that the powers to acquire, 
use, and dispose of property as set forth in this paragraph shall include 
the power to acquire, use, and dispose of any interest in such property, 
whether divided or undivided, which acquisition may result in the 
ownership of such property or any part thereof in common with any 
other party or parties, public or private; 

144 



42-4-97 jails 42-4-97 

(5) To make contracts and leases and to execute all instruments 
necessary or convenient, including contracts for construction of jails and 
leases of jails or contracts with respect to the use of jails which it causes 
to be acquired or constructed on a negotiated basis without competitive 
bid, provided that all private persons, firms, and corporations, this state, 
and all political subdivisions, departments, instrumentalities, or agencies 
of the state or of local government are authorized to enter into contracts, 
leases, or agreements with the authority, upon such terms and for such 
purposes as they deem advisable; and, without limiting the generality of 
the provisions of this paragraph, authority is specifically granted to 
municipal corporations and counties and to the authority to enter into 
contracts, lease agreements, or other undertakings relative to the furnish- 
ing of project activities and facilities or either of them by the authority to 
such municipal corporations and counties and by such municipal corpo- 
rations and counties to the authority for a term not exceeding 50 years; 

(6) To exercise any one or more of the powers, rights, and privileges 
conferred by this Code section either alone or jointly or in common with 
one or more other public or private parties. In any such exercise of such 
powers, rights, and privileges jointly or in common with others with 
respect to the construction, operation, and maintenance of jail facilities, 
the authority may own an undivided interest in such facilities with any 
other party with which it may jointly or in common exercise the rights 
and privileges conferred by this article and may enter into an agreement 
or agreements with respect to any such jail facility with the other party or 
parties participating therein; and such agreement may contain such 
terms, conditions, and provisions, consistent with this article, as the 
parties thereto shall deem to be in their best interests, including, but not 
limited to, provisions for the construction, operation, and maintenance 
of such jail facility by any one or more of the parties to such agreement, 
which party or parties shall be designated in or pursuant to such 
agreement as agent or agents on behalf of itself and one or more of the 
other parties thereto, or by such other means as may be determined by 
the parties thereto, and including provisions for a method or methods of 
determining and allocating, among or between the parties, costs of 
construction, operation, maintenance, renewals, replacements, improve- 
ments, and disposal with respect to such facility, such agent shall be 
governed by the laws and regulations applicable to such agent as a 
separate legal entity and not by any laws or regulations which may be 
applicable to any of the other participating parties; provided, however, 
the agent shall act for the benefit of the public. Notwithstanding anything 
contained in any other law to the contrary, pursuant to the terms of any 
such agreement, the authority may delegate its powers and duties with 
respect to the construction, operation, and maintenance of such facility 
to the party acting as agent; and all actions taken by such agent in 
accordance with the provisions of such agreement may be binding upon 
the authority without further action or approval of the authority; 

145 



42-4-97 PENAL INSTITUTIONS 42-4-97 

(7) To accept, receive, and administer gifts, grants, appropriations, 
and donations of money, materials, and property of any kind, including 
loans and grants from the United States, this state, a unit of local 
government, or any agency, department, authority, or instrumentality of 
any of the foregoing, upon such terms and conditions as the United 
States, this state, a unit of local government, or such agency, department, 
authority, or instrumentality shall impose; to administer trusts; and to sell, 
lease, transfer, convey, appropriate, and pledge any and all of its property 
and assets; 

(8) To do any and all things necessary or proper for the accomplish- 
ment of the objectives of this article and to exercise any power usually 
possessed by private corporations performing similar functions which is 
not in conflict with the Constitution and laws of this state, including the 
power to employ professional and administrative staff and personnel by 
and through the management committee and to retain legal, engineer- 
ing, fiscal, accounting, and other professional services; the power to 
purchase all kinds of insurance, including, without limitation, insurance 
against tort liability and against risks of damage to property; the power to 
borrow money for any of the corporate purposes of the authority; the 
power to indemnify and hold harmless any parties contracting with the 
authority or its agents from damage to persons or property; and the 
power to act as self-insurer with respect to any loss or liability; provided, 
however, that obligations of the authority other than revenue bonds, for 
which provision is made in this article, shall be payable from the general 
funds of the authority and shall not be a charge against any special fund 
allocated to the payment of revenue bonds; 

(9) To borrow money and issue its revenue bonds and bond anticipa- 
tion notes from time to time and to use the proceeds thereof for the 
purpose of paying all or part of the cost of any jail, including the cost of 
extending, adding to, or improving such jail, or for the purpose of 
refunding any such bonds of the authority theretofore issued; and 
otherwise to carry out the purposes of this article and to pay all other 
costs of the authority incident to, or necessary and appropriate to, such 
purposes, including the provision of funds to be paid into any fund or 
funds to secure such bonds and notes, provided that all such bonds and 
notes shall be issued in accordance with the procedures and subject to the 
limitations set forth in Code Section 42-4-100; and 

(10) To fix rentals and other charges which any user shall pay to the 
authority for the use of a jail or part or combination thereof, and to 
charge and collect the same, and to lease and make contracts with 
political subdivisions and agencies with respect to the use of any part of 
any jail or jails. Such rentals and other charges shall be so fixed and 
adjusted with respect to the aggregate thereof from the jail or any part 
thereof so as to provide a fund with other revenues of such jail, if any, to 

146 



42-4-98 JAILS 42-4-99 

pay the cost of maintaining, repairing, and operating the jail, including 
reserves for extraordinary repairs and insurance, unless such cost shall be 
otherwise provided for, which costs shall be deemed to include the 
expenses incurred by the authority on account of the jail for water, light, 
sewer, and other services furnished by other facilities at such jail. (Code 
1981, § 42-4-97, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, 
§ 6; Ga. L. 1997, p. 143, § 42.) 

The 1996 amendment, effective July 1, The 1997 amendment, effective March 28, 

1996, near the middle of paragraph (3), 1997, part of an Act to correct errors and 
inserted "or municipalities" and substituted omissions in the Code, substituted 
"any contribution" for "any combination". "42-4-100" for "42-4-98" in paragraph (9). 

42-4-98. Duties and responsibilities of sheriffs and governing bodies im- 
posed upon management committee and authority. 

(a) Every duty and responsibility of the sheriff of a participant county to 
operate a jail in an efficient and orderly manner is imposed upon the 
management committee and to that extent the sheriff of a participant 
county is relieved of those duties with respect to the operation of a jail 
including specifically, but without limitation, Code Section 15-16-24 and this 
chapter. 

(b) Every duty and responsibility of the governing body of a participant 
county to erect, repair, and furnish a jail in an efficient and orderly manner 
is imposed on the authority as provided in the agreement between the 
participating government and the authority and to that extent the county is 
relieved, including specifically but without limitation, of those duties 
imposed by Code Sections 36-9-5 through 36-9-11, with respect to jails. The 
authority shall adopt a budget for the operation of the jail that reasonably 
and adequately provides for the personnel, training of personnel, equip- 
ment, facilities, and other items necessary for the management committee 
to operate the jail. The authority shall hold budget hearings not less than 
120 days prior to the adoption of the budget. (Code 1981, § 42-4-98, 
enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1997, p. 143, § 42.) 

The 1997 amendment, effective March 28, omissions in the Code, revised language in 

1997, part of an Act to correct errors and subsection (a) of this Code section. 

42-4-99. Limitation on liability of members, officers, or employees. 

Except for willful or wanton misconduct, neither the members of the 
authority nor any officer or employee of the authority, acting on behalf 
thereof and while acting within the scope of his or her responsibilities, shall 
be subject to any liability resulting from: 

(1) The design, construction, ownership, maintenance, operation, or 
management of a jail or jails; or 

147 



42-4-100 PENAL INSTITUTIONS 42-4-100 

(2) The carrying out of any of the discretionary powers or duties 
expressly provided for in this article. (Code 1981, § 42-4-99, enacted by 
Ga. L. 1995, p. 292, § 1.) 

42-4-100. Bonds or other obligations; requirements and procedure for 
issuance. 

(a) Subject to the limitations and procedures provided by this Code 
section, the obligations of any authority evidenced by bonds, bond antici- 
pation notes, trust indentures, deeds to secure obligations, security agree- 
ments, or mortgages executed in connection therewith may contain such 
provisions not inconsistent with law as shall be determined by the board of 
directors of the authority. The authority, in such instruments, may provide 
for the pledging of all or any part of its revenues, income, or charges and 
for the mortgaging, encumbering, or conveying of all or any part of its real 
or personal property; may covenant against pledging any or all of its 
revenues, income, or charges; and may further provide for the disposition 
of proceeds realized from the sale of any bonds and bond anticipation 
notes, for the replacement of lost, destroyed, stolen, or mutilated bonds and 
notes, and for the payment and redemption of such bonds and notes. 
Similarly, subject to the limitations and procedures of this Code section, 
undertakings of any authority may prescribe the procedure by which 
bondholders and noteholders may enforce rights against the authority and 
provide for rights upon breach of any covenant, condition, or obligation of 
the authority. Bonds, resolutions, trust indentures, mortgages, or deeds to 
secure obligations executed by an authority and bond anticipation notes 
executed by an authority may contain such provisions not otherwise 
contrary to law as the authority shall deem necessary or desirable. 

(b) The proceeds derived from the sale of all bonds and bond anticipa- 
tion notes issued by an authority shall be held and used for the ultimate 
purpose of paying, directly or indirectly as permitted in this article, all or 
part of the cost of any jail, including the cost of extending, financing, 
adding to, or improving such jail, or for the purpose of refunding any bond 
anticipation notes issued in accordance with this article or refunding any 
previously issued bonds of the authority. 

(c) All bonds and bond anticipation notes issued by an authority shall be 
revenue obligations of such authority and may be made payable out of any 
revenues or other receipts, funds, or moneys of the authority, subject only 
to any agreements with the holders of other bonds or bond anticipation 
notes or to particular security agreements pledging any particular revenues, 
receipts, funds, or moneys. 

(d) Issuance by an authority of one or more series of bonds or bond 
anticipation notes for one or more purposes shall not preclude it from 
issuing other bonds or notes in connection with the same jail or with any 

148 



42-4-1Q0 JAILS 42-4-100 

other jails, but the proceeding wherein any subsequent bonds or bond 
anticipation notes shall be issued shall recognize and protect any prior 
pledge or mortgage made in any prior security agreement or made for any 
prior issue of bonds or bond anticipation notes, unless in the resolution 
authorizing such prior issue the right is expressly reserved to the authority 
to issue subsequent bonds or bond anticipation notes on a parity with such 
prior issue. 

(e) An authority shall have the power and is authorized, whenever 
revenue bonds of the authority have been validated as provided in this 
article, to issue, from time to time, its notes in anticipation of the issuance 
of such bonds as validated and to renew from time to time any such notes 
by the issuance of new notes, whether the notes to be renewed have or have 
not matured. The authority may issue notes only to provide funds which 
would otherwise be provided by the issuance of the bonds as validated. The 
notes may be authorized, sold, executed, and delivered in the same manner 
as bonds. As with its bonds, the authority may sell such notes at public or 
private sale. Any resolution or resolutions authorizing notes of the authority 
or any issue thereof may contain any provision which the authority is 
authorized to include in any such resolution or resolutions; and the 
authority may include in any notes any terms, covenants, or conditions 
which it is authorized to include in any bonds. Validation of such bonds 
shall be a condition precedent to the issuance of the notes, but it shall not 
be required that such notes be judicially validated. Bond anticipation notes 
shall not be issued in an amount exceeding the par value of the bonds in 
anticipation of which they are to be issued. 

(f ) The interest rate on or rates to be borne by any bonds, notes, or 
other obligations issued by the authority shall be fixed by the board of 
directors of the authority. Any limitation with respect to interest rates found 
in Article 3 of Chapter 82 of Tide 36 or in the usury laws of this state shall 
not apply to obligations issued under this article. 

(g) All revenue bonds issued by an authority under this article will be 
issued and validated under and in accordance with Article 3 of Chapter 82 
of Title 36, except as provided in subsection (f ) of this Code section and 
except as specifically set forth below: 

(1) Revenue bonds issued by an authority shall be fully registered and 
shall be subject to such exchangeability and transferability provisions as 
the bond resolution authorizing the issuance of such bonds or any 
indenture or trust agreement may provide; 

(2) Revenue bonds shall bear a certificate of validation. The signature 
of the clerk of the superior court of the judicial circuit in which the 
issuing authority is located may be made on the certificate of validation 
of such bonds by facsimile or by manual execution, stating the date on 
which such bonds were validated; and such entry shall be original 

149 



42-4-101 PENAL INSTITUTIONS 42-4-101 

evidence of the fact of judgment and shall be received as original 
evidence in any court in this state; and 

(3) In lieu of specifying the rate or rates of interest which revenue 
bonds to be issued by an authority are to bear, the notice to the district 
attorney or the Attorney General and the notice to the public of the time, 
place, and date of the validation hearing may state that the bonds, when 
issued, will bear interest at a rate not exceeding a maximum per annum 
rate of interest specified in such notes or, in the event the bonds are to 
bear different rates of interest for different maturity dates, that none of 
such bonds shall bear interest at such rate or rates without regard to any 
limitation contained in any other statute or law of this state; provided, 
however, that nothing contained in this paragraph shall be construed as 
prohibiting or restricting the right of the authority to sell such bonds at 
a discount, even if in so doing the effective interest cost resulting 
therefrom would exceed the maximum per annum interest rate specified 
in such notices. 

(h) The term "cost of project" shall have the meaning prescribed in 
paragraph (2) of Code Section 42-4-92 whenever referred to in bond 
resolutions of an authority, bonds, and bond anticipation notes issued by an 
authority, or notices and proceedings to validate such bonds. (Code 1981, 
§ 42-4-100, enacted by Ga. L. 1995, p. 292, § 1.) 

42-4-101. Bonds or other obligations not indebtedness of state or political 
subdivision; payment. 

No bonds or other obligations of and no indebtedness incurred by any 
authority shall constitute an indebtedness or obligation of the State of 
Georgia or of any county, municipal corporation, or political subdivision 
thereof, nor shall any act of any authority in any manner constitute or result 
in the creation of an indebtedness of this state or of any such county, 
municipal corporation, or political subdivision. However, provisions of this 
Code section shall not preclude counties, municipal corporations, or other 
political subdivisions from choosing to guarantee the bonds, indebtedness, 
or other obligations of a jail authority as part of its demonstration of 
adequate financial responsibility pursuant to this article. All such bonds and 
obligations shall be payable solely from the revenues therein pledged to 
such payment, including pledged rentals, sales proceeds, insurance pro- 
ceeds, and condemnation awards; and no holder or holders of any such 
bond or obligation shall ever have the right to compel any exercise of the 
taxing power of this state or of any county, municipal corporation, or 
political subdivision thereof or to enforce the payment thereof against any 
property of the state or of any such county, municipal corporation, or 
political subdivision. (Code 1981, § 42-4-101, enacted by Ga. L. 1995, p. 
292, § 1.) 

150 



42-4-102 jails 42-4-103 

42-4-102. Construction of article; bonds not subject to regulation under 
Georgia Securities Act; power of counties and municipalities to 
activate authorities. 

(a) This article shall be liberally construed to effect the purposes hereof. 
Sale or issuance of bonds by any authority shall not be subject to regulation 
under Chapter 5 of Title 10, the "Georgia Securities Act of 1973," or any 
other law. 

(b) A county or any number of counties or a municipality or any number 
of municipalities shall have the right to activate any authority under this 
article, notwithstanding the existence of any other authority having similar 
powers or purposes within the county or a municipal corporation created 
pursuant to any general law or amendment to the Constitution of this state. 
However, nothing in this article shall be construed as repealing, amending, 
superseding, or altering the organization of or abridging the powers of such 
authorities as are now in existence. (Code 1981, § 42-4-102, enacted by Ga. 
L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 7.) 

The 1996 amendment, effective July 1, number of municipalities" in the first sen- 
1996, inserted "or a municipality or any tence of subsection (b). 

42-4-103. Operation and finance agreement required; withdrawal from 
authority. 

(a) Failure of a participant county or participant municipality to execute 
an operation and finance agreement duly adopted by the authority at a 
regularly scheduled meeting or a meeting called for that purpose within 60 
days after such agreement has been executed by two or more participant 
counties or participant municipalities shall constitute a withdrawal from the 
authority. 

(b) Any participant county or participant municipality may withdraw 
from the authority subject to any contract, obligation, or agreement with 
the authority, but no participant county or participant municipality shall be 
permitted to withdraw from any authority after any obligation has been 
incurred by the authority. The governing body of the participant county or 
participant municipality wishing to withdraw from an existing authority 
shall signify its desire by resolution or ordinance. (Code 1981, § 42-4-103, 
enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 8.) 

The 1996 amendment, effective July 1, three places in subsection (b) and inserted 
1996, inserted "or participant municipality" "or participant municipalities" near the end 
near the beginning of subsection (a) and in of subsection (a). 



151 



42-4-104 PENAL INSTITUTIONS 42-4-105 

42-4-104. Authority of county or municipality to establish and maintain jail 
or jail-holding facility. 

Notwithstanding anything contained in this article, no participant county 
or participant municipality shall be prohibited from establishing and 
maintaining any jail or jail-holding facility. Notwithstanding any other 
provision in this chapter, such jails shall be operated as provided in the laws 
of this state as if the county or municipality was not a participant in the 
regional jail authority. (Code 1981, § 42-4-104, enacted by Ga. L. 1995, p. 
292, § 1; Ga. L. 1996, p. 1098, § 9.) 

The 1996 amendment, effective July 1, operated" for "sheriffs shall operate the 

1996, inserted "or participant municipality" county jail" and inserted "or municipality" 

in the first sentence and, in the second near the end. 
sentence, substituted "such jails shall be 

42-4-105. Immunity of authorities from liability. 

Regional jail authorities shall be carrying out an essential governmental 
function on behalf of participant counties or participant municipalities and 
are, therefore, given immunity from liability for carrying out their intended 
functions. (Code 1981, § 42-4-105, enacted by Ga. L. 1995, p. 292, § 1; Ga. 
L. 1996, p. 1098, § 10.) 

The 1996 amendment, effective July 1, 
1996, inserted "or participant municipali- 
ties". 



152 



STATE/COUNTY CORRECTIONAL INSTITUTIONS 

CHAPTER 5 



CORRECTIONAL INSTITUTIONS OF STATE AND COUNTIES 



Sec. 

42-5-1. 

42-5-2. 



42-5-3. 
42-5-4. 
42-5-5. 

42-5-6. 

42-5-7. 
42-5-8. 
42-5-9. 

42-5-10. 

42-5-11. 

42-5-12. 
42-5-13. 
42-5-14. 
42-5-15. 



Article 1 
General Provisions 

Definitions. 

Responsibilities of governmental 
unit with custody of inmate gen- 
erally; costs of emergency and 
follow-up care; access to medical 
services or hospital care for in- 
mates. 

Department's responsibility for 
trial costs and expenses. 
Payment of trial costs and ex- 
penses. 

Reimbursement of court costs 
and transportation and deten- 
tion expenses incurred in trying 
escapees from state correctional 
institutions. 

Participation by county correc- 
tional institutions in state pur- 
chasing contracts. 
Sudden or unusual death of in- 
mate. 

Notification upon escape of in- 
mate. 

Notification of district attorney 
and local law enforcement agen- 
cies of projected release date of 
inmate. 

Promulgation of rules governing 
plans and specifications for new 
correctional institutions; certifi- 
cation of acceptability of old fa- 
cilities by state fire marshal. 
General prohibition against re- 
ceipt of remuneration in regard 
to assignment, transfer, or status 
of inmate. 

Receipt of remuneration by state 
officials in regard to assignment, 
transfer, or status of inmate. 
Record of person contacting 
commissioner, department, or 
board on behalf of inmate. 
Establishment of guard lines and 
signs at state or county correc- 
tional institutions. 
Crossing of guard lines with 



Sec. 

42-5-16. 

42-5-17. 
42-5-18. 

42-5-19. 
42-5-20. 
42-5-21. 



weapons, intoxicants, or drugs 
without consent of warden or 
superintendent. 

Trading with inmates without 
consent of warden or superinten- 
dent. 

Loitering near inmates after be- 
ing ordered to desist. 
Giving weapons, intoxicants, 
drugs, or other items to inmates 
without consent of warden or 
superintendent; possession of 
same by inmate. 

Penalty for violating Code Sec- 
tion 42-5-16, 12-5-17, or 42-5-18. 
Alcohol or Drug Use Risk Reduc- 
tion Program. 

Family Violence Counseling Pro- 
gram. 

Article 2 



Wardens, Superintendents, and Other 
Personnel 

42-5-30. Qualifications for wardens, su- 
perintendents, and other per- 
sonnel; appointment of wardens 
of county correctional institu- 
tions. 

42-5-31. Oath of office of wardens and 
superintendents, their deputies, 
and other correctional officers. 

42-5-32. Bonds of superintendents, war- 
dens, and other officials and em- 
ployees. 

42-5-33. Submission of monthly reports 
to commissioner by wardens and 
superintendents. 

42-5-34. Powers of arrest of wardens, su- 
perintendents, and deputies. 

42-5-35. Conferral of police powers; au- 
thorization to assist local law en- 
forcement officers or correc- 
tional officers. 

42-5-36. Confidentiality of information 
supplied by inmates; penalties 
for breach thereof; classified na- 
ture of department investigation 
reports; custodians of records of 
department. 



153 



PENAL INSTITUTIONS 



Sec. 
42-5-37. 



42-5-37.1. 

42-5-38. 
42-5-39. 
42-5-40. 
42-5-41. 



Employees in control of inmates 
prohibited from receiving profit 
from inmate labor; penalties. 
Compensation of employees of 
institutions operated by depart- 
ment for damages to wearing ap- 
parel caused by inmate action. 
Making false statement as to age 
to procure employment. 
Refusal by officer to receive in- 
mates in correctional institution. 
Requiring inmates to do unnec- 
essary work on Sunday. 
Compensation of department 
employee injured by inmate or 
probationer [Repealed]. 

Article 3 



Conditions of Detention Generally 

42-5-50. Transmittal of information on 
convicted persons; place of de- 
tention; custody of inmates sen- 
tenced prior to January 1, 1983. 

42-5-51. Jurisdiction over certain misde- 
meanor offenders; designation 
of place of confinement of in- 
mates; reimbursement of county; 
transfer of inmates to federal au- 
thority. 

42-5-52. Classification and separation of 
inmates generally; placement of 
juvenile offenders and of fe- 
males; transfer of mentally dis- 
eased, alcoholic, drug addicted, 
or tubercular inmates. 

42-5-52.1. Submission to HIV test; separate 
housing for HIV infected per- 
sons. 

42-5-53. Establishment of county correc- 
tional institutions; supervision by 
department; quota of inmates; 
funding; confinement and with- 
drawal of inmates. 

42-5-54. Information from inmates relat- 
ing to medical insurance; provi- 
sion and payment of medical 
treatment for inmates. 

42-5-55. Deductions from inmate ac- 
counts for payment of certain 
damages and medical costs; limit 
on deductions; fee for managing 
inmate accounts. 



Sec. 

42-5-56. [Repealed]. 

42-5-57. Institution of rehabilitation pro- 
grams; provision of opportuni- 
ties for educational, religious, 
and recreational activities. 

42-5-58. Prohibition against corporal 
punishment; use of handcuffs, 
leg chains, and other restraints; 
permissible punishment gener- 
ally. 

42-5-59. Employment of inmates in the 
local community. 

42-5-60. Hiring out of inmates; sale of 
products produced by inmates; 
disposition of proceeds; payment 
to inmates for services. 

42-5-60.1. Utilization of inmates of county 
correctional institutions for work 
on outdoor assignments during 
inclement weather; supervision 
of inmates. 

42-5-61. Services and benefits to be fur- 
nished inmates discharged by de- 
partment or county correctional 
institutions. 

42-5-62. Forfeiture of contraband. 

42-5-63. Unauthorized possession of 
weapon by inmate. 

42-5-64. (For effective date, see note) Ed- 
ucational programming. 

Article 4 

Granting Special Leaves, Emergency 

Leaves, and Limited Leave 

Privileges 

42-5-80. Authorization and general pro- 
cedure for granting special leave. 

42-5-81. Issuance of special leave; filing. 

42-5-82. Purposes for which special leave 
may be granted. 

42-5-83. Emergency leaves. 

42-5-84. Delegation of authority to issue 
limited leave privileges; records. 

42-5-85. Leave privileges of inmates serv- 
ing murder sentences. 

Article 5 

Awarding Earned-time Allowances 

42-5-100. Termination of board's power to 

award earned-time allowances. 
42-5-101. Work incentive credits. 



154 



42-5-1 



STATE/COUNTY CORRECTIONAL INSTITUTIONS 



42-5-2 



ARTICLE 1 
GENERAL PROVISIONS 



Cross references. — Escape of person in 
lawful custody, and as to assault on, resis- 
tance to, etc., officer or guard within penal 
institution, § 16-10-52 et seq. 

Editor's notes. — By resolution (Ga. L. 
1987, p. 3550), the General Assembly di- 
rected the Board of Corrections to designate 
the correctional facility in Forsyth, Monroe 
County, Georgia, as the "A.L. 'AT Burruss 
Correctional Training Center" and to affix 
an appropriate plaque at the entrance to 
that center indicating that designation. 

By resolution (Ga. L. 1988, p. 334), the 
General Assembly designated the correc- 
tional facility in Pennville, Chattooga 



County, Georgia, as the "Forest Hays, Jr., 
Correctional Institudon." 

By resolution (Ga. L. 1988, p. 1470), the 
General Assembly created the Commission 
on Criminal Sanctions and Correctional Fa- 
cilities, to be abolished January 1, 1990. 

By resolution (Ga. L. 1991, p. 1203), the 
General Assembly designated the probation 
detention center in Fulton County, Georgia 
as the 4 J. Carrell Larmore Probation Deten- 
tion Center." 

By resolution (Ga. L. 1992, p. 3109), the 
General Assembly designated the correc- 
tional institution in Mitchell County as the 
'Jimmy Autry Correctional Institution." 



RESEARCH REFERENCES 



Am. Jut. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, §§ 13, 14, 21-23. 

C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, §§ 7-9, 12-19. 

ALR. — Validity and construction of 
prison regulation of inmates' possession of 

42-5-1. Definitions. 



personal property, 66 ALR4th 800. 

State prisoner's right to personally appear 
at civil trial to which he is a party — state 
court cases, 82 ALR4th 1063. 

Propriety of telephone testimony or hear- 
ings in prison proceedings, 9 ALR5th 451. 



As used in this chapter, the term: 

(1) "Board" means the Board of Corrections. 

(2) "Commissioner" means the commissioner of corrections. 

(3) "Department" means the Department of Corrections. (Code 
1981, § 42-5-1; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1.) 

Cross references. — Notification to De- created as part of the Code revision and was 

partment of Corrections, Uniform Superior thus enacted by Ga. L. 1981, Ex. Sess., p. 8 

Court Rules, Rule 35.1. (Code enactment Act). 

Editor's notes. — This Code section was 

42-5-2. Responsibilities of governmental unit with custody of inmate gen- 
erally, costs of emergency and follow-up care; access to medical 
services or hospital care for inmates. 

(a) Except as provided in subsection (b) of this Code section, it shall be 
the responsibility of the governmental unit, subdivision, or agency having 
the physical custody of an inmate to maintain the inmate, furnishing him 



155 



42-5-2 PENAL INSTITUTIONS 42-5*2 

food, clothing, and any needed medical and hospital attention; to defend 
any habeas corpus or other proceedings instituted by or on behalf of the 
inmate; and to bear all expenses relative to any escape and recapture, 
including the expenses of extradition. Except as provided in subsection (b) 
of this Code section, it shall be the responsibility of the department to bear 
the costs of any reasonable and necessary emergency medical and hospital 
care which is provided to any inmate after the receipt by the department of 
the notice provided by subsection (a) of Code Section 42-5-50 who is in the 
physical custody of any other political subdivision or governmental agency 
of this state, except a county correctional institution, if the inmate is 
available and eligible for the transfer of his custody to the department 
pursuant to Code Section 42-5-50. Except as provided in subsection (b) of 
this Code section, the department shall also bear the costs of any reasonable 
and necessary follow-up medical or hospital care rendered to any such 
inmate as a result of the initial emergency care and treatment of the inmate. 
With respect to state inmates housed in county correctional institutions, the 
department shall bear the costs of direct medical services required for 
emergency medical conditions posing an immediate threat to life or limb if 
the inmate cannot be placed in a state institution for the receipt of this care. 
The responsibility for payment will commence when the costs for direct 
medical services exceed an amount specified by rules and regulations of the 
Board of Corrections. The department will pay only the balance in excess of 
the specified amount. Except as provided in subsection (b) of this Code 
section, it shall remain the responsibility of the governmental unit having 
the physical custody of an inmate to bear the costs of such medical and 
hospital care, if the custody of the inmate has been transferred from the 
department pursuant to any order of any court within this state. The 
department shall have the authority to promulgate rules and regulations 
relative to payment of such medical and hospital costs by the department. 

(b) (1) The officer in charge will provide an inmate access to medical 
services or hospital care and may arrange for the inmate's health 
insurance carrier to pay the health care provider for the services or care 
rendered as provided in Article 3 of Chapter 4 of this title. 

(2) With respect to an inmate covered under Article 3 of Chapter 4 of 
this title, the costs of any medical services, emergency medical and 
hospital care, or follow-up medical or hospital care as provided in 
subsection (a) of this Code section for which a local governmental unit is 
responsible shall mean the costs of such medical services and hospital 
care which have not been paid by the inmate's health insurance carrier or 
the Department of Medical Assistance. (Ga. L. 1956, p. 161, § 13; Ga. L. 
1982, p. 1361, §§ 1, 2; Ga. L. 1983, p. 3, § 31; Ga. L. 1986, p. 493, § 1; Ga. 
L. 1992, p. 2125, § 3.) 

Cross references. — Habeas corpus gen- Law reviews. — For article surveying leg- 

erally, Ch. 14, T. 9. islative and judicial developments in Georgia 

156 



42-5-2 



STATE/COUNTY CORRECTIONAL INSTITUTIONS 



42-5-2 



local government law for 1978-79, see 31 
Mercer L. Rev. 155 (1979). 



For note on 1992 amendment of this Code 
section, see 9 Ga. St. U.L. Rev. 310 (1992). 



JUDICIAL DECISIONS 



County was responsible for detainee's 
medical care where he was injured while 
being taken into custody by the county sher- 
iff's department and, but for the seriousness 
of his injuries, would have been placed in 
the county's detention facility. Cherokee 
County v. North Cobb Surgical Assocs., P.C., 
221 Ga. App. 496, 471 S.E.2d 561 (1996). 

Use of prisoners' funds for medical ex- 
penses. — As it is the city's responsibility to 
pay all medical and hospital expenses for a 
prisoner in its custody, using a fund recov- 
ered from the prisoner after a shoot-out to 
pay these expenses, the city, in effect, appro- 
priated the entire fund to itself. Johnson v. 
Mayor of Carrollton, 249 Ga. 173, 288 S.E.2d 
565 (1982) (decided prior to 1982 amend- 



ment, which added last four sentences). 

Charged detainees are inmates. — The 
term "inmate" means not only a person who 
has been convicted of an offense, but also a 
person who has been detained by reason of 
being charged with a crime, such that county 
was responsible for the medical expenses of 
an individual arrested and charged with 
theft, regardless of his procedural status, 
and, additionally, of the self-inflicted nature 
of his injuries. Macon-Bibb County Hosp. 
Auth. v. Houston County, 207 Ga. App. 530, 
428 S.E.2d 374 (1993). 

Cited in Irwin v. Arrendale, 117 Ga. App. 
1, 159 S.E.2d 719 (1967); McKenzey v. State, 
140 Ga. App. 402, 231 S.E.2d 149 (1976). 



OPINIONS OF THE ATTORNEY GENERAL 



Editor's notes. — Most of the following 
annotations were taken from opinions ren- 
dered prior to the 1982 amendment of this 
section, which added the last four sentences 
of subsection (a). 

Responsibility for medical bills accrued 
for treatment. — See 1986 Op. Att'y Gen. 
No. U86-23. 

Medical bills arising from injury of work 
release inmate. — Private employer is prima- 
rily responsible for payment of medical bills 
arising from injuries, fatal or otherwise, re- 
ceived by work release inmate while on job, 
but upon default by employer, the Depart- 
ment of Offender Rehabilitation (Correc- 
tions) is ultimately responsible for paying for 
those medical services. 1981 Op. Att'y Gen. 
No. 81-27. 

Medical care and expenses of escaped 
prisoners. — The board may pay only those 
medical expenses incurred by an escaped 
prisoner, as a result of his wrecking a stolen 
automobile, which may properly be classi- 
fied as an expense relating to the recapture 
of the prisoner. 1967 Op. Att'y Gen. No. 
67-218. 

Responsibility for providing medical and 
dental care rests upon the governmental 
unit having physical custody of an inmate; 
there is, however, no statutory prohibition 



against taking an inmate to his private phy- 
sician or dentist for specialized treatment at 
the expense of the inmate; however, while 
the Board of Corrections may permit an 
inmate to receive private specialized treat- 
ment, the inmate has no right to demand 
that the board permit such treatments. 1967 
Op. Att'y Gen. No. 67-336. 

Liability for medical expenses depends 
upon physical custody. — A municipality is 
only liable for a prisoner's medical expenses 
incurred while the prisoner is in the physical 
custody of the municipality. 1990 Op. Att'y 
Gen. No. U90-8. 

When custody of a prisoner ceases by 
virtue of the prisoner's posting an appear- 
ance bond, the municipality's responsibility 
for needed medical care and hospital atten- 
tion ceases. At that point the municipality 
ceases to have physical custody of the indi- 
vidual, since he is free to leave at any time he 
desires. 1990 Op. Att'y Gen. No. U90-8. 

Chiropractic aid. — There is no prohibi- 
tion against chiropractic aid to prisoners, 
however, such should be furnished only 
upon request of the prisoner. 1960-61 Op. 
Att'y Gen. p. 357. 

Medical expenses of assignees to medical 
centers. — Board is liable for medical ex- 
penses of probationers and parolees as- 



157 



42-5-3 



PENAL INSTITUTIONS 



42-5-3 



signed to community centers operated by 
the board. 1974 Op. Att'y Gen. No. 74-129. 

Medical expenses of woman resulting 
from assault and rape by escaped prisoner. 
— The board may not pay the medical 
expenses of an 83-year-old woman who was 
assaulted and raped by an escaped inmate 
from the Georgia Industrial Institute. 1967 
Op. Att'y Gen. No. 67-301. 

Defense of habeas corpus proceeding. — 
Governmental unit having physical custody 
of prisoner is required to defend any habeas 
corpus proceeding, including an appeal 
therefrom; it is the responsibility of the 
attorney representing the governmental unit 
having physical custody of a prisoner to 
defend the appeal in the Supreme Court of 
this state. 1969 Op. Att'y Gen. No. 69-39. 

Responsibility for extradition proceedings 



expenses. — There is an initial responsibility 
for payment of expenses incurred by an 
agency within the executive authority of this 
state initiating extradition proceedings, and 
that agency is under an obligation to secure 
the indemnification of the funds which it 
was obligated to expend relative to the es- 
cape of a prisoner from the county having 
physical custody of the prisoner at the time 
of the escape. 1970 Op. Att'y Gen. No. 70-13. 
Responsibility for asylum expenses of es- 
caped fugitive. — The ultimate responsibil- 
ity for bearing the expenses incurred in the 
asylum state attending upon the arrest and 
delivery of the escaped fugitive rests with the 
governmental unit having the physical cus- 
tody of the prisoner. 1970 Op. Att'y Gen. No. 
70-13. 



RESEARCH REFERENCES 



ALR. — What justifies escape or attempt 
to escape, or assistance in that regard, 70 
ALR2d 1430. 

Liability of prison authorities for injury to 
prisoner directly caused by assault by other 
prisoner, 41 ALR3d 1021. 

Duress, necessity, or conditions of confine- 
ment as justification for escape from prison, 
69 ALR3d 678. 



Immunity of public officer from liability 
for injuries caused by negligently released 
individual, 5 ALR4th 773. 

Right of state prison authorities to admin- 
ister neuroleptic or antipsychotic drugs to 
prisoner without his or her consent — state 
cases, 75 ALR4th 1124. 



42-5-3. Department's responsibility for trial costs and expenses. 

The whole costs of the case and expenses of the trial involving an inmate 
of the state penal system charged with the violation of any criminal statute 
shall be borne by the department, provided the offense was committed by 
the inmate within the confines of a state correctional institution or was the 
crime of escape or attempted escape. The costs and expenses of the trial 
shall include, but shall not be limited to, the cost of the sheriff, bailiff, 
clerks, jurors, and jail fees and shall be paid by the department to the 
governing authority of the county in which the trial was conducted, for 
proper disposition. (Orig. Code 1863, § 4690; Code 1868, § 4714; Code 
1873, § 4812; Code 1882, § 4812; Penal Code 1895, § 1174; Penal Code 
1910, § 1230; Code 1933, § 77-401; Ga. L. 1964, p. 462, § 1; Ga. L. 1975, p. 
1590, § 1.) 



Cross references. — Payment of costs of 
criminal proceedings generally, Ch. 11, T. 
17. 



158 



42-5-4 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-5 

JUDICIAL DECISIONS 

Fund out of which expenses paid. — No the provision that it shall be paid out of the 

reference is made in this section or else- penitentiary fund, remains unrepealed, 

where in this Code as to the fund from which Campbell v. Davison, 162 Ga. 221, 133 S.E. 

the expense is to be paid, and it seems that 468 (1926). 

OPINIONS OF THE ATTORNEY GENERAL 

Costs of trial conducted after discharge inmate is returned to the custody of the 

from custody. — Board is liable for costs of Department of Offender Rehabilitation 

trial of former inmate in custody of depart- (Corrections). 1979 Op. Att'y Gen. No. 

ment tried for crime committed while in- 79-64. 

mate was incarcerated in custody of depart- Other costs and fees department obli- 

ment, but whose trial will take place after the gated to pay. — The Department of Correc- 

inmate is discharged from custody. 1979 Op. tions is obligated to pay all costs and ex- 

Att'y Gen. No. 79-64. penses listed on the statement submitted to 

Costs include incarceration in local jail the department, including court-appointed 

during trial but not for incarceration, if any, attorneys' fees and the per diem of the court 

at the local jail after the trial and before the reporter. 1963-65 Op. Att'y Gen. p. 743. 

42-5-4. Payment of trial costs and expenses. 

The clerk of the superior court from the county in which the trial 
specified in Code Section 42-5-3 was conducted shall submit a statement of 
the charges, certified by the judge of the superior court or the judge of the 
city court, to the department, which shall pay the charges out of the 
appropriations provided therefor in accordance with schedules authorized 
by law. (Ga. L. 1964, p. 462, § 2.) 

42-5-5. Reimbursement of court costs and transportation and detention 
expenses incurred in trying escapees from state correctional insti- 
tutions. 

The department is authorized and directed to reimburse the clerk of the 
court for court costs incurred in trying a defendant for the crime of escape 
when the escape is from a state correctional institution and to reimburse 
the sheriff of the county wherein the trial takes place for the expense of 
transporting the defendant from the place of detention to court for trial 
and returning the defendant from the court to the place of detention, such 
reimbursement to be at the rate of 100 per mile. (Ga. L. 1971, p. 572, § 1.) 

OPINIONS OF THE ATTORNEY GENERAL 

Costs limited to actual costs. — This sec- it allows reimbursement to the sheriffs of the 

tion limits payment of court costs in cases counties in which the trials take place only 

related to escapees from state institutions to for the expense of transporting the defen- 

actual costs incurred by the clerks of courts dants to and from their places of detention, 

in which such escapees are tried; in addition, 1972 Op. Att'y Gen. No. 72-43. 

159 



42-5-6 PENAL INSTITUTIONS 42-5-8 

42-5-6. Participation by county correctional institutions in state purchasing 
contracts. 

County correctional institutions may participate in all state purchasing 
contracts for the purpose of providing materials and supplies to state or 
county inmates. (Ga. L. 1975, p. 908, § 2.) 

Cross references. — State purchasing gen- 
erally, § 50-5-50 et seq. 

42-5-7. Sudden or unusual death of inmate. 

Whenever any inmate dies suddenly or under unusual circumstances in 
any correctional institution, the warden or superintendent of that institu- 
tion shall immediately notify the commissioner and shall also notify the 
coroner of the county in which the death occurs. The warden or superin- 
tendent is also directed to furnish the department with a copy of the 
findings of the coroner's inquest, together with any other information 
available that would be of use to the commissioner in determining the cause 
of death. (Ga. L. 1956, p. 161, § 25.) 

Cross references. — Reimbursement of Administrative rules and regulations. — 

counties for expenses of burial of inmates, Death and interment, Official Compilation 

§ 36-12-5. Requirement of autopsy and in- of Rules and Regulations of State of Georgia, 

quest upon death of inmate occurring when Rules of Georgia Board of Offender Reha- 

physician not present or as a result of vio- bilitation, Chapter 415-2-4-.20. 
lence, § 45-16-27. 

OPINIONS OF THE ATTORNEY GENERAL 

Notification of next of kin of inmates' death of an inmate who has been transferred 

death. — Neither the warden nor any staff to a hospital. 1967 Op. Att'y Gen. No. 

member at the Georgia State Prison is legally 67-445. 
required to notify the next of kin of the 

RESEARCH REFERENCES 

ALR. — Liability for death or injury to prisoner directly caused by assault by other 
prisoner, 61 ALR 569. prisoner, 41 ALR3d 1021. 

Liability of prison authorities for injury to 

42-5-8. Notification upon escape of inmate. 

In addition to any all-points bulletin issued by the department notifying 
all local law enforcement agencies within the state of the escape of any 
inmate from the custody of the department, the department shall also, 
within 72 hours of the discovery of the escape, notify all parties who in the 
judgment of the commissioner have a legitimate need to know that the 
inmate has escaped and who have requested in writing that the department 

160 



42-6-9 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-11 

notify the party prior to the inmate's release from custody. (Ga. L. 1980, p. 
393, § 1; Ga. L. 1985, p. 149, § 42.) 

42-5-9. Notification of district attorney and local law enforcement agencies 
of projected release date of inmate. 

At least 15 days prior to the projected release date of any inmate 
scheduled to be released pursuant to the authority of the department, each 
district attorney and all local law enforcement agencies throughout the 
state shall be notified of the projected release date by the department. The 
notification required by this Code section shall be accomplished by 
publishing the necessary information in the Georgia Criminal Activity Bulletin 
published and disseminated by the Georgia Bureau of Investigation. (Ga. L. 
1980, p. 393, § 2.) 

42-5-10. Promulgation of rules governing plans and specifications for new 
correctional institutions; certification of acceptability of old facil- 
ities by state fire marshal. 

The board shall prescribe by rule and regulation the required plans and 
specifications defining the size and type of construction and materials to be 
employed in constructing all state and county correctional institutions. The 
specifications shall require that the buildings be as nearly free from fire 
hazards and as nearly escape-proof as is possible under all circumstances. A 
certificate of approval from the state fire marshal shall be conclusive as to 
the acceptability of all old state or county correctional institutions from a 
standpoint of fire hazard. No county shall establish a county correctional 
institution until its establishment and the plans and specifications thereof 
have been approved by the board. (Ga. L. 1956, p. 161, § 17.) 

Administrative rules and regulations. — State of Georgia, Rules of Georgia Board of 
Building and housing standards, Official Offender Rehabilitation, Chapter 415-2-2. 
Compilation of Rules and Regulations of 

OPINIONS OF THE ATTORNEY GENERAL 

Dormitory standard set by board cannot long as the standard is not below that set by 

fall below standard set by Safety Fire Com- the Georgia Safety Fire Commission (now 

missioner. — The Board of Offender Reha- Safety Fire Commissioner). 1954-56 Op. 

bilitation (Corrections) has authority to re- Att'y Gen. p. 526. 
quire a prison dormitory of any standard, so 

42-5-11. General prohibition against receipt of remuneration in regard to 
assignment, transfer, or status of inmate. 

(a) It shall be unlawful for anyone other than a duly licensed attorney 
who is an active member in good standing of the State Bar of Georgia and 
who is not a member of the General Assembly to accept a fee, money, or 

161 



42-5-12 PENAL INSTITUTIONS 42-5-12 

other remuneration, other than actual expenses, for contacting, in any 
manner, the commissioner, any employee of the department, or any 
member of the board in an attempt to influence the commissioner, 
employee, or board member concerning a transfer of an inmate from one 
correctional institution to another or concerning the status and assignment 
of an inmate within a correctional institution. 

(b) Any person who receives any fee, money, or other remuneration 
other than actual expenses, in violation of subsection (a) of this Code 
section, shall be guilty of a misdemeanor. (Ga. L. 1975, p. 1218, § 1.) 

42-5-12. Receipt of remuneration by state officials in regard to assignment, 
transfer, or status of inmate. 

(a) It shall be unlawful for members of the General Assembly or any 
other state elected or appointed official to accept a fee, money, or other 
remuneration for contacting, in any manner, the commissioner, any em- 
ployee of the department, or any member of the board in an attempt to 
influence the commissioner, employee, or board member concerning a 
transfer of an inmate from one correctional institution to another or 
concerning the status and assignment of an inmate within a correctional 
institution. 

(b) Nothing in this Code section shall be construed so as to prohibit: 

(1) Members of the General Assembly or other state elected or 
appointed officials from appearing before or contacting the commis- 
sioner, employees of the department, or members of the board when 
their official duties require them to do so; 

(2) Members of the General Assembly or other state elected or 
appointed officials from requesting information from and presenting 
information to the commissioner, employees of the department, or 
members of the board on behalf of constituents when no compensation, 
gift, favor, or anything of value is accepted, either directly or indirectly, 
for such services; or 

(3) Members of the General Assembly or other state elected or 
appointed officials from contacting the commissioner, any employee of 
the department, or any member of the board on behalf of any person so 
long as there is no fee, money, or other remuneration being paid or 
received for such contacting. 

(c) Nothing in this Code section shall be construed to apply to the 
acceptance of compensation, expenses, and allowances received by mem- 
bers of the General Assembly or any other state elected or appointed official 
for his duties as a member or official. 

(d) Nothing contained in this Code section shall preclude any attorney 
from contacting a client who may be in a correctional institution or from 

162 



42-5-13 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-14 

making any reasonable contact with employees of the department to the 
extent that the contact with employees may be necessary to contact his 
client. 

(e) Any person violating this Code section shall be guilty of a misde- 
meanor. (Ga. L. 1975, p. 1218, § 3.) 

OPINIONS OF THE ATTORNEY GENERAL 



Inspection of correspondence between in- er's general correspondence; reasonable 

mate and attorney. — Prison officials may censorship of such correspondence may be 

inspect correspondence between attorneys imposed. 1967 Op. Att'y Gen. No. 67-314. 
and their clients; in addition to the prison- 

42-5-13. Record of person contacting commissioner, department, or board 
on behalf of inmate. 

The department shall maintain a complete written record of every person 
contacting the commissioner, any employee of the department, or any 
member of the board concerning a transfer of an inmate from one 
correctional institution to another or concerning the status and assignment 
of an inmate within a correctional institution. The record shall include the 
name and address of the person contacting the commissioner, employee, or 
board member and the reason for the contact. (Ga. L. 1975, p. 1218, § 2.) 

42-5-14. Establishment of guard lines and signs at state or county correc- 
tional institutions. 

Guard lines shall be established by the warden, superintendent, or his 
designated representative in charge at the various state or county correc- 
tional institutions in the same manner that land lines are established, 
except that, at each corner of the lines, signs must be used on which shall 

be plainly stamped or written: "Guard line of " Signs shall also 

be placed at all entrances and exits for vehicles and pedestrians at the 
institutions and at such intervals along the guard lines as will reasonably 
place all persons approaching the guard lines on notice of the location of 
the institutions. (Ga. L. 1903, p. 71, § 3; Penal Code 1910, § 1231; Code 
1933, § 77-403; Ga. L. 1961, p. 45, § 1.) 

JUDICIAL DECISIONS 

Cited in Cox Communications, Inc. v. 
Lowe, 173 Ga. App. 812, 328 S.E.2d 384 
(1985). 



163 



42-5-15 PENAL INSTITUTIONS 42-5-16 

42-5-1 5. Crossing of guard lines with weapons, intoxicants, or drugs without 
consent of warden or superintendent. 

(a) It shall be unlawful for any person to come inside the guard lines 
established at any state or county correctional institution with a gun, pistol, 
or any other weapon or with or under the influence of any intoxicating 
liquor, amphetamines, biphetamines, or any other hallucinogenic or other 
drugs, without the knowledge or consent of the warden, superintendent, or 
his designated representative. 

(b) Any person who violates this Code section shall be guilty of a felony 
and, upon conviction thereof, shall be punished by imprisonment for not 
less than one year nor more than four years. (Ga. L. 1903, p. 71, § 1; Penal 
Code 1910, § 1232; Code 1933, § 77-404; Ga. L. 1961, p. 45, § 1; Ga. L. 
1971, p. 220, § 1.) 

JUDICIAL DECISIONS 

Cited in Cox Communications, Inc. v. (1985); Howard v. State, 185 Ga. App. 465, 
Lowe, 173 Ga. App. 812, 328 S.E.2d 384 364 S.E.2d 600 (1988). 

OPINIONS OF THE ATTORNEY GENERAL 

Correctional staff are authorized to search conduct searches according to clear guide- 
visitors entering or leaving correctional in- lines prepared for them by the Department 
stitutions; these searches may be conducted of Offender Rehabilitation (Corrections), 
by regular members of the correctional staff, 1974 Op. Att'y Gen. No. 74-146. 
properly supervised and trained; they should 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and C.J.S. — 72 C.J.S., Prisons and Rights of 
Correctional Institutions, §§ 78-82. Prisoners, §§ 61, 62, 102-105. 

42-5-16. Trading with inmates without consent of warden or superinten- 
dent. 

It shall be unlawful for any person to trade or traffic with, buy from, or sell 
any article to an inmate without the knowledge and consent of the warden, 
superintendent, or the designated representative in charge. (Ga. L. 1903, p. 
71, § 2; Penal Code 1910, § 1233; Code 1933, § 77-405; Ga. L. 1961, p. 45, 

§ 1.) 

OPINIONS OF THE ATTORNEY GENERAL 

Paid interview with inmate. — An inter- the prisoner. 1969 Op. Att'y Gen. No. 

view with an inmate, for which the inmate is 69-299. 

paid, is an illegal transaction unless consum- Payment for blood collected from inmate. 

mated with the knowledge and approval of — A hospital may collect blood from an 

the warden or deputy warden in charge of inmate and pay him a fee for it with the 

164 



42-5-17 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-18 

approval of the appropriate warden or dep- 
uty warden. 1969 Op. Att'y Gen. No. 69-21. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and C.J.S. — 72 C.J.S., Prisons and Rights of 
Correctional Institutions, § 106. Prisoners, § 75. 

42-5-17. Loitering near inmates after being ordered to desist. 

It shall be unlawful for any person to loaf, linger, or stand around where 
inmates are employed or kept after having been ordered by the warden, 
superintendent, or designated representative in charge of the inmates to 
desist therefrom. (Ga. L. 1903, p. 71, § 5; Penal Code 1910, § 1234; Code 
1933, § 77-406; Ga. L. 1961, p. 45, § 1.) 

Cross references. — Prohibition against bondsmen at places where prisoners are 
solicitation of business by professional confined, § 17-6-52. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and ALR. — Validity of loitering statutes and 

Correctional Institutions, §§ 78-86. ordinances, 25 ALR3d 836. 

C.J.S. — 72 C.J.S. , Prisons and Rights of 
Prisoners, §§ 102-105. 

42-5-18. Giving weapons, intoxicants, drugs, or other items to inmates 
without consent of warden or superintendent; possession of same 
by inmate. 

(a) It shall be unlawful for any person to obtain, to procure for, or to give 
to an inmate a gun, pistol, or any other weapon, any intoxicating liquor, 
amphetamines, biphetamines, or any other hallucinogenic drugs or other 
drugs, regardless of the amount, or any other article or item, without the 
knowledge and consent of the warden, superintendent, or his designated 
representative. 

(b) Any inmate found to be in possession of a gun, pistol, or any other 
weapon, any intoxicating liquor, amphetamines, biphetamines, or any other 
hallucinogenic drugs or other drugs, regardless of the amount, or any other 
item given to said inmate in violation of subsection (a) of this Code section 
shall be prosecuted as set forth in Code Section 42-5-19. (Ga. L. 1976, p. 
1506, § 2; Ga. L. 1984, p. 593, § 1.) 

Cross references. — Similar provisions tional facilities, or other lawful places of 
regarding furnishing of alcoholic beverages confinement, § 3-3-25. 
to inmates of jails, penal institutions, correc- 



165 



42-5-19 PENAL INSTITUTIONS 42-5-20 

JUDICIAL DECISIONS 

"Weapon" defined. — Jury's finding that a meaning of subsection (b), was not unrea- 

"water bug" (a device used to bring a liquid sonable. Culbertson v. State, 193 Ga. App. 9, 

to a boil), which defendant threw at correc- 386 S.E.2d 894 (1989). 
tional officers, was a "weapon," within the 

OPINIONS OF THE ATTORNEY GENERAL 

Applicability. — This section is applicable obtained or procured for or given to a 

only when the items referred to are obtained prisoner being held in a county jail who has 

or procured for or given to a convict. It is not not yet been convicted of any crime. 1980 

applicable where the items referred to are Op. Att'y Gen. No. U80-12. 

RESEARCH REFERENCES 

C.J.S. — 72 C.J.S., Prisons and Rights of conveying contraband to state prisoner, 64 
Prisoners, §§ 61, 62, 75. ALR4th 902. 

ALR. — Nature and elements of offense of 

42-5-19. Penalty for violating Code Section 42-5-16, 42-5-17, or 42-5-18. 

Any person who violates Code Section 42-5-16, 42-5-17, or 42-5-18 shall be 
guilty of a felony and, upon conviction thereof, shall be imprisoned for not 
less than one nor more than five years. (Ga. L. 1961, p. 45, § 1; Ga. L. 1976, 
p. 1506, § 1.) 

RESEARCH REFERENCES 

Am. Jut. 2d. — 60 Am. Jur. 2d, Penal and Prisoners, §§ 61, 62, 75, 102-105. 
Correctional Institutions, §§ 78-86, 106. ALR. — Validity of loitering statutes and 

C.J.S. — 72 C.J.S., Prisons and Rights of ordinances, 25 ALR3d 836. 

42-5-20. Alcohol or Drug Use Risk Reduction Program. 

The department shall provide within the correctional system an Alcohol 
or Drug Use Risk Reduction Program. The program shall be made available 
to every person sentenced to the custody of the state whose criminal offense 
or history indicates alcohol or drug involvement; provided, however, that 
the provisions of this Code section shall not apply to a person who has been 
sentenced to the punishment of death or those deemed mentally incom- 
petent. (Code 1981, § 42-5-20, enacted by Ga. L. 1995, p. 625, § 1.) 

Effective date. — This Code section be- enactment of this section, see 12 Ga. St. U.L. 
came effective July 1, 1995. Rev. 301 (1995). 

Law reviews. — For note on the 1995 



166 



42-&21 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-30 

42-5-21. Family Violence Counseling Program. 

The department shall provide within the correctional system a Family 
Violence Counseling Program. The program shall be made available to 
every person sentenced to the custody of the state who committed an 
offense which has been identified to involve family violence as such term is 
denned in Code Section 19-13-1; provided, however, that the provisions of 
this Code section shall not apply to a person who has been sentenced to the 
punishment of death or to those deemed mentally incompetent. (Code 
1981, § 42-5-21, enacted by Ga. L. 1996, p. 1113, § 1.) 

Effective date. — This Code section be- 
came effective July 1, 1996. 

ARTICLE 2 
WARDENS, SUPERINTENDENTS, AND OTHER PERSONNEL 

Cross references. — Indemnification of Personnel requirements, Official Compila- 

prison guards, etc., for death or disablement tion of Rules and Regulations of State of 

in line of duty, § 45-9-80 et seq. Georgia, Rules of Georgia Board of Of- 

Administrative rules and regulations. — fender Rehabilitation, Chapter 415-2-1. 

42-5-30. Qualifications for wardens, superintendents, and other personnel; 
appointment of wardens of county correctional institutions. 

The board shall by rule and regulation define the qualifications for 
wardens, superintendents, and other personnel employed in the state and 
county correctional institutions. The board shall by rule and regulation 
specify appropriate titles of personnel so employed, but no such personnel 
shall be known as or designated by the board as "guards" or "prison 
guards." The wardens and deputy wardens of the various county correc- 
tional institutions shall be appointed by the governing authority of the 
county, subject to approval of the board, and shall serve at the pleasure of 
the county or the board. (Ga. L. 1956, p. 161, § 18; Ga. L. 1984, p. 639, § 1; 
Ga. L. 1993, p. 417, § 1.) 

JUDICIAL DECISIONS 

Proceedings for removal of warden. — A of a county has no authority to employ an 

proceeding before the prison commission attorney to represent it in a proceeding 

(now Board of Corrections) for the removal before the prison commission (now Board of 

of a warden is not "litigation" within the Corrections) for the discharge of a warden, 

meaning of Ga. Const. 1877, Art. VII, Sec. Humber v. Dixon, 147 Ga. 480, 94 S.E. 565 

VI, Para. II (see Ga. Const. 1983, Art. IX, Sec. (1917) (decided under Penal Code 1910, 

IV, Para. I). Hence, the governing authority § 1192). 



167 



42-5-31 



PENAL INSTITUTIONS 



42-5-31 



OPINIONS OF THE ATTORNEY GENERAL 



This section provides for two types of 
wardens: those at "state-operated institu- 
tions" under § 42-2-9 and those "appointed 
by the governing authority of the county," 
under this section; a person cannot be a 
warden within the state penal system unless 
he is an employee either of the state or a 
county authorized to maintain a county cor- 
rectional institution under the supervision 
of the Board of Corrections. 1973 Op. Atty 
Gen. No. 73-72. 

Authority to issue rules establishing quali- 
fications for wardens. — The Board of Of- 
fender Rehabilitation (Corrections) has the 
authority to issue rules establishing the prac- 
tical experience and educational back- 
ground necessary for the position of warden 
of a county correctional institution. 1973 
Op. Atty Gen. No. 73-41. 



It is within ambit of board to decide what 
is "experience" and when it is "equivalent" 
for purposes of satisfying educational re- 
quirements and the board may use its power 
to remove wardens and prisoners to ensure 
that county wardens do in fact possess the 
requisite qualifications. 1973 Op. Att'y Gen. 
No. 73-41. 

Recourse when county institutions fail to 
hire qualified wardens. — If a county correc- 
tional institution fails to employ a warden 
duly qualified according to the requirements 
set forth by the board, the board may re- 
move all the prisoners from that institution. 
1973 Op. Att'y Gen. No. 73-41. 

Eighteen-year-olds may legally be hired for 
correctional officers. 1974 Op. Att'y Gen. 
No. 74-138. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 63A Am. Jur. 2d, Public 
Officers and Employees, § 162. 



C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, § 15. 



42-5-31. Oath of office of wardens and superintendents, their deputies, and 
other correctional officers. 

Before entering upon the duties of their office, wardens and superinten- 
dents, their deputies, and other correctional officers or employees shall 
take and subscribe, before some officer authorized to administer oaths, the 
following oath: 

"I do solemnly swear (or affirm) that I will support and defend the 
Constitutions of the United States of America and the State of Georgia 
and that I will faithfully perform and discharge the duties of my office 
conscientiously and without malice or partiality, to the best of my ability. 
So help me God." (Penal Code 1910, § 1197; Code 1933, § 77-311; Ga. 
L. 1968, p. 1155, § 1; Ga. L. 1984, p. 639, § 2.) 

JUDICIAL DECISIONS 



Liability for acts committed by convicts. 

— Warden of a public works camp (now 
county correctional institution) will not be 
held liable for torts of convicts on mere 
averment that he was negligent "in permit- 
ting said convicts to roam the roads of 
county and state in a truck, without any 
guard," whereby injuries resulted from a 



collision of the truck with the plaintiff's car, 
as it was discretionary with the warden to 
determine how and in what manner convicts 
employed outside confines of the camp 
(now county correctional institution) doing 
work in connection with the operation it 
should be allowed to go at large, and war- 
dens acting in a discretionary capacity, will 



168 



42-5-32 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-32 

not be liable unless guilty of willfulness, (decided under former Code 1933, 

fraud, malice, or corruption, or unless they §§ 77-307, 77-311, and 77-313). 
knowingly act wrongfully, and not according Cited in Cleveland v. State, 260 Ga. 770, 

to their honest convictions of duty. Price v. 399 S.E 2d 472 (1991) 
Owen, 67 Ga. App. 58, 19 S.E.2d 529 (1942) 

RESEARCH REFERENCES 

C.J.S. — 67 C.J.S., Oaths and injury to prisoner directly caused by assault 
Affirmations, §§ 4, 6, 7. by other prisoner, 41 ALR3d 1021. ' 

ALR. — Liability of prison authorities for 

42-5-32. Bonds of superintendents, wardens, and other officials and em- 
ployees. 

(a) Before any state or county correctional institution or other facility 
operating under the jurisdiction of the board shall be approved to receive 
inmates, the board shall require the warden, superintendent, or other chief 
custodial officer of the institution to execute a bond, in an amount as the 
board may require, with good securities to be approved by it, such bond to 
be not less than $10,000.00, payable to the Governor and his successors in 
office and conditioned upon the following: 

(1) To account faithfully for all public and other funds or property 
coming into the principal's custody, control, care, or possession; and 

(2) To discharge truly and faithfully all the duties imposed upon him 
by law or by the rules and regulations of the board. 

(b) The board may also require that any other officials, employees, or 
agents of the department or of the various penal institutions referred to in 
subsection (a) of this Code section shall give bond as referred to in 
subsection (a) of this Code section, in an amount to be determined by the 
board, but in no case to be less than $5,000.00. 

(c) All bonds given under this Code section shall be liable for any breach 
of the conditions specified in paragraphs (1) and (2) of subsection (a) of 
this Code section by a deputy, agent, or subordinate of the principal, 
whether expressed therein or not; and all such bonds shall be subject to and 
governed by all the provisions of Chapter 4 of Title 45 which are not in 
conflict with this Code section. The costs of bonds obtained for wardens 
and other officials or employees of the county correctional institutions shall 
be paid for by the county. The costs of bonds obtained for superintendents 
and other officials or employees of the state correctional institutions and of 
the department shall be paid for by the state. (Penal Code 1910, § 1197; 
Code 1933, § 77-311; Ga. L. 1956, p. 161, § 20; Ga. L. 1957, p. 477, § 5.) 



Cross references. — Official bonds gener- 
ally, Ch. 4, T. 45. 



169 



42-5-33 PENAL INSTITUTIONS 42-5-35 

JUDICIAL DECISIONS 

Cited in Irwin v. Arrendale, 117 Ga. App. 834 (1968); Price v. Arrendale, 119 Ga. App. 
1, 159 S.E.2d 719 (1967); Fidelity-Phenix Ins. 589, 168 S.E.2d 193 (1969). 
Co. v. Mauldin, 118 Ga. App. 401, 163 S.E.2d 

RESEARCH REFERENCES 

Am. Jut. 2d. — 60 Am. Jur. 2d, Penal and action on statutory bond, 2 ALR 563. 

Correctional Institutions, § 179. 63A Am. Personal liability of policeman, sheriff, or 

Jur. 2d, Public Officers and Employees, similar peace officer on his bond, for injury 

§ 487 et seq. suffered as a result of failure to enforce law 

ALR. — Leave of court as prerequisite to or arrest lawbreaker, 41 ALR3d 700. 

42-5-33. Submission of monthly reports to commissioner by wardens and 
superintendents. 

The wardens or superintendents of all state or county correctional 
institutions shall send monthly reports to the commissioner showing the 
names of all inmates held in custody. (Ga. L. 1956, p. 161, § 26.) 

42-5-34. Powers of arrest of wardens, superintendents, and deputies. 

Wardens and superintendents shall have authority to deputize any person 
in their employ. Wardens, superintendents, and their deputies are legally 
constituted arresting officers, with or without warrants, for the purpose of 
arresting persons violating Code Sections 42-5-14 through 42-5-18. Any 
person resisting arrest shall be dealt with as the law directs for resisting an 
officer. (Ga. L. 1961, p. 45, § 1; Ga. L. 1986, p. 1170, § 1.) 

JUDICIAL DECISIONS 

Cited in State v. Roulain, 159 Ga. App. 
233, 283 S.E.2d 89 (1981). 

42-5-35. Conferral of police powers; authorization to assist local law 
enforcement officers or correctional officers. 

(a) The commissioner may confer all powers of a police officer of this 
state, including, but not limited to, the power to make summary arrests for 
violations of any of the criminal laws of this state and the power to carry 
weapons, upon wardens of county correctional institutions and upon 
persons in the commissioner's employment as the commissioner deems 
necessary, provided that individuals so designated meet the requirements 
specified in all applicable laws. 

(b) The commissioner or his designee may authorize certain persons in 
his employment to assist law enforcement officers or correctional officers of 

170 



42-5-36 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-36 

local governments in preserving order and peace when so requested by 
such local authorities. (Ga. L. 1956, p. 161, § 19; Ga. L. 1972, p. 599, § 1; 
Ga. L. 1975, p. 1246, § 1; Ga. L. 1983, p. 672, § 1; Ga. L. 1984, p. 22, § 42; 
Ga. L. 1986, p. 1170, § 2; Ga. L. 1987, p. 454, § 1; Ga. L. 1988, p. 464, § 1.) 

JUDICIAL DECISIONS 

Cited in State v. Roulain, 159 Ga. App. 
233, 283 S.E.2d 89 (1981). 

OPINIONS OF THE ATTORNEY GENERAL 

Officer's actions in preventing escape Extent of force permissible in preventing 

must be with sole intent of discharging duty inmate escapes. — See 1981 Op. Att'y Gen. 
to prevent escape and arrest inmate. Any No. 81-82. 
other intent on officer's part will eliminate 
his defense of justification. 1981 Op. Att'y 
Gen. No. 81-82. 

42-5-36. Confidentiality of information supplied by inmates; penalties for 
breach thereof; classified nature of department investigation re- 
ports; custodians of records of department. 

(a) Officials and employees of the department shall respect the confi- 
dential nature of information supplied by inmates who cooperate in 
remedying abuses and wrongdoing in the penal system. Any official or 
employee who breaks such a confidence and thereby subjects a cooperating 
inmate to physical jeopardy or harassment shall be subject to suspension or 
discharge. 

(b) Investigation reports and intelligence data prepared by the Internal 
Investigations Unit of the department shall be classified as confidential state 
secrets and privileged under law, unless declassified in writing by the 
commissioner. 

(c) All institutional inmate files and central office inmate files of the 
department shall be classified as confidential state secrets and privileged 
under law, unless declassified in writing by the commissioner; provided, 
however, these records shall be subject to subpoena by a court of competent 
jurisdiction of this state. 

(d) The commissioner shall designate members of the department to be 
the official custodians of the records of the department. The custodians 
may certify copies or compilations, including extracts thereof, of the 
records of the department. Subject to the provisions of this Code section, in 
response to a subpoena or upon the request of any appropriate government 
or judicial official, the department may provide a duly authenticated copy 
of any record or other document. This authenticated copy may consist of a 
photocopy or computer printout of the requested document certified by 

171 



42-5-37 PENAL INSTITUTIONS 42-5-37 

the commissioner or his or her duly authorized representative. (Ga. L. 1968, 
p. 1399, § 5; Ga. L. 1983, p. 680, § 1; Ga. L. 1984, p. 22, § 42; Ga. L. 1984, 
p. 1361, § 1; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1; Ga. L. 1997, 

p. 851, § 1.) 

The 1997 amendment, effective April 21, cations generally, § 24-9-20 et seq. Inspec- 
1997, added subsection (d). tion of public records generally, § 50-18-70 

Cross references. — Privileged communi- et seq. 

OPINIONS OF THE ATTORNEY GENERAL 

Declassification by commissioner. — Pur- classified as confidential state secrets and 

suant to this section, investigation reports privileged under law except as declassified in 

and intelligence data prepared by the Inter- writing by the commissioner of offender 

nal Investigations Unit of the Department of rehabilitation (corrections). 1985 Op. Att'y 

Offender Rehabilitation (Corrections) are Gen. No. 85-4. 

42-5-37. Employees in control of inmates prohibited from receiving profit 
from inmate labor; penalties. 

(a) No warden, superintendent, deputy, inspector, physician, or any 
officer or other employee who has charge, control, or direction of inmates 
shall be interested in any manner whatever in the work or profit of the labor 
of any inmate; nor shall any such personnel receive any pay, gift, gratuity, or 
favor of a valuable character from any person interested, either directly or 
indirectly, in such labor. 

(b) Any person violating subsection (a) of this Code section shall be 
guilty of a felony and, upon conviction thereof, shall be punished by 
imprisonment for a term of not less than two years and not more than five 
years. The offense may be reduced to a misdemeanor by recommendation 
of the jury trying the case, if the court concurs in the jury's recommenda- 
tion. In addition, a person who violates subsection (a) of this Code section 
shall be summarily discharged from the service of the state by the 
department. 

(c) This Code section shall not prohibit a part-time professional em- 
ployee from the regular practice of his profession. (Ga. L. ]908, p. 1119, 
§11; Penal Code 1910, § 1196; Code 1933, § 77-9906; Ga. L. 1984, p. 639, 

§ 3.) 

JUDICIAL DECISIONS 

Constitutionality of subsection (a). — or benefit from the labor of inmates under 

While it is commonly understood that a his control. Therefore subsection (a) is not 

warden will have a permissible interest in the void for vagueness. Cleveland v. State, 260 

performance of labor by inmates under his Ga. 770, 399 S.E.2d 472 (1991). 

control as that labor benefits the county or Warden's use of inmate labor for personal 

state, the clear meaning of this statute is that benefit. — Although, as warden, the defen- 

a warden may not receive a personal interest dant was permitted to live rent-free in a 

172 



42-5-37. 1 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-40 

house located on county property, the evidence that the warden directed inmates 

county did not benefit from routine use of to perform labor for his personal benefit 

inmates to perform personal housekeeping supports his convictions for violating subsec- 

chores at this home, as well as to walk the tion (a) beyond a reasonable doubt. Cleve- 

warden's dogs and clean the dog pens, land v. State, 260 Ga. 770, 399 S.E.2d 472 

baby-sit his children, and wash his personal (1991). 

vehicles. Inmates who refused to perform Cited in Smith v. Deering, 880 F. Supp. 

these chores were punished. The extensive 816 (S.D. Ga. 1994). 

42-5-37.1. Compensation of employees of institutions operated by depart- 
ment for damages to wearing apparel caused by inmate action. 

(a) As used in this Code section, the term "wearing apparel" means 
eyeglasses, hearing aids, clothing, and similar items worn on the person of 
the employee. 

(b) When action by an inmate in one of the penal institutions operated 
by the department results in damage to an item of wearing apparel of an 
employee of the institution, the department shall compensate the employee 
for the loss in the amount of the repair cost, the replacement value, or the 
cost of the item of wearing apparel, whichever is less. 

(c) Such losses shall be compensated only in accordance with procedures 
to be established by the department. (Ga. L. 1981, p. 1429, § 1.) 

42-5-38. Making false statement as to age to procure employment. 

Any person who makes a false statement as to his age in order to procure 
employment as a correctional officer, warden, superintendent, or other 
employee shall be guilty of a misdemeanor. (Ga. L. 1908, p. 1119, § 10; 
Penal Code 1910, § 1193; Code 1933, § 77-9905.) 

42-5-39. Refusal by officer to receive inmates in correctional institution. 

If the superintendent or warden of a state or county correctional 
institution or other officer or person employed therein whose duty it is to 
receive inmates fails or refuses to do so, he shall be punished by confine- 
ment not exceeding ten years and shall be dismissed from office. (Cobb's 
1851 Digest, p. 807; Code 1863, § 4381; Code 1868, § 4419; Code 1873, 
§ 4487; Code 1882, § 4487; Penal Code 1895, § 286; Penal Code 1910, 
§ 290; Code 1933, § 77-9903.) 

42-5-40. Requiring inmates to do unnecessary work on Sunday. 

Any superintendent, warden, or other correctional official who causes 
any inmate to do any work on Sunday, except works of necessity, shall be 
guilty of a misdemeanor. (Ga. L. 1908, p. 1119, § 14; Penal Code 1910, 

173 



42-5-41 PENAL INSTITUTIONS 42-5-50 

§ 420; Code 1933, § 26-6909; Code 1933, § 26-9909, enacted by Ga. L. 
1968, p. 1249, § 1.) 

Law reviews. — For comment criticizing Reynolds, 223 Ga. 727, 157 S.E.2d 746 

judicial intervention in Brown v. Teel, 236 (1967), holding the Sunday Business Activi- 

A.2d 699 (N.H. 1967), and advocating def- ties Act of 1967 (Code 1933, Ch. 96-8) 

erence to legislative determination of Sun- unconstitutional, see 19 Mercer L. Rev. 479 

day business law, see 19 Mercer L. Rev. 445 (1968). 
(1968). For comment on Hughes v. 

RESEARCH REFERENCES 

ALR. — Validity, construction, and effect 
of "Sunday closing" or "blue" laws — mod- 
ern status,' 10 ALR4th 246. 

42-5-41. Compensation of department employee injured by inmate or 
probationer. 

Repealed by Ga. L. 1986, p. 1491, § 2, effective July 1, 1986. 

Editor's notes. — This Code section was of department employees injured in the line 
based on Ga. L. 1985, p. 1113, § 1. For of duty by an act of external violence, see 
current provisions regarding compensation Code Section 45-7-9. 

ARTICLE 3 
CONDITIONS OF DETENTION GENERALLY 

Administrative rules and regulations. — State of Georgia, Rules of Georgia Board of 
Institutional and center operations, Official Offender Rehabilitation, Chapters 415-3-1 
Compilation of Rules and Regulations of through 415-3-6. 

RESEARCH REFERENCES 

ALR. — Sex discrimination in treatment familial visits in penal or correctional insti- 
of jail or prison inmates, 12 ALR4th 1219. tutions, 29 ALR4th 1216. 
State regulation of conjugal or overnight 

42-5-50. Transmittal of information on convicted persons; place of deten- 
tion; custody of inmates sentenced prior to January 1, 1983. 

(a) The clerk of the court shall notify the commissioner of a sentence 
within 30 working days following the receipt of the sentence, and other 
documents set forth in this Code section. Such notice shall be mailed within 
such time period by first-class mail and shall be accompanied by three 
complete and certified sentence packages containing the following docu- 
ments: 

(1) A certified copy of the sentence; 

174 



42-5-50 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-50 

(2) A complete history of the convicted person, including a certified 
copy of the indictment, accusation, or both and such other information 
as the commissioner may require; 

(3) An affidavit of the custodian of such person indicating the total 
number of days the convicted person was incarcerated prior to the 
imposition of the sentence. It shall be the duty of the custodian of such 
person to transmit the affidavit provided for in this paragraph to the clerk 
of the superior court within ten days following the date on which the 
sentence is imposed; and 

(4) Order of probation revocation or tolling of probation. 

All of the aforementioned documents will be submitted on forms provided 
by the commissioner. The commissioner shall file one copy of each such 
document with the State Board of Pardons and Paroles within 30 working 
days of receipt of such documents from the clerk of the court. Except where 
the clerk is on a salary, the clerk shall receive from funds of the county the 
fee prescribed in Code Section 15-6-77 for such service. 

(b) Except as otherwise provided in subsection (c) of this Code section, 
within 15 days after the receipt of the information provided for in 
subsection (a) of this Code section, the commissioner shall assign the 
convicted person to a correctional institution designated by him in accor- 
dance with subsection (b) of Code Section 42-5-51. It shall be the financial 
responsibility of the correctional institution to provide for the picking up 
and transportation, under guard, of the inmate to his assigned place of 
detention. If the inmate is assigned to a county correctional institution or 
other county facility, the county shall assume such duty and responsibility. 

(c) In the event that the attorney for the convicted person shall file a 
written request with the court setting forth that the presence of the 
convicted person is required within the county of the conviction, or 
incarceration, in order to prepare and prosecute properly the appeal of the 
conviction, the convicted person shall not be transferred to the correctional 
institution as provided in subsection (b) of this Code section. In such event 
the convicted person shall remain in the custody of the local jail or lockup 
until all appeals of the conviction shall be disposed of or until the attorney 
of record for the convicted person shall file with the trial court an affidavit 
setting forth that the presence of the convicted person is no longer required 
within the county in which the conviction occurred, or in which the 
convicted person is incarcerated, whichever event shall first occur. 

(d) The department shall not be required to assume the custody of those 
inmates who have been convicted and sentenced prior to January 1, 1983, 
and because their conviction is under appeal have not been transferred to 
the custody of the department, until July 1, 1983. The state shall pay for 
each such inmate not transferred to the custody of the department the per 
diem rate specified by subsection (c) of Code Section 42-5-51 for each day 

175 



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PENAL INSTITUTIONS 



42-5-50 



the inmate remains in the custody of the county after the department 
receives the notice provided by subsection (a) of this Code section on or 
after January 1, 1983. 

(e) In the event that the convicted person is free on bond pending the 
appeal of his conviction, the notice provided for in subsection (a) of this 
Code section shall not be transmitted to the commissioner until all appeals 
of such conviction have been disposed of or until the bond shall be revoked. 
(Ga. L. 1956, p. 161, § 13; Ga. L. 1968, p. 1399, § 1; Ga. L. 1977, p. 1098, 
§ 9; Ga. L. 1982, p. 1364, § 1; Ga. L. 1983, p. 3, § 31; Ga. L. 1985, p. 149, 
§ 42; Ga. L. 1990, p. 565, § 1; Ga. L. 1991, p. 94, § 42.) 

Cross references. — Imposition of sen- 
tence generally, § 17-10-1. 

JUDICIAL DECISIONS 



Language in sentence designating place of 
incarceration surplusage but not void. — 

Where one guilty of a misdemeanor is sen- 
tenced to be "confined at labor at the State 
Penitentiary at Reidsville, Georgia (Georgia 
State Prison), or such other place as the 
proper authority may direct," such portion 
of the sentence as seeks to designate the 
place of confinement, where no effort so to 
confine the prisoner is shown and since the 
director of the department of corrections 
(now commissioner of corrections) desig- 
nates where most sentences are served, is 
mere surplusage, and, though technically 
not in the right form, is not such an irregu- 
larity as is hurtful to any right of liberty, or 
such a defect as makes the sentence void. 
Mathis v. Scott, 199 Ga. 743, 35 S.E.2d 285 
(1945) (decided under Ga. L. 1937, p. 758). 
Absent evidence of defendant's induce- 
ment guilty plea not void. — Defendant's 
dissatisfaction as to his incarceration in an 



institution other than one recommended by 
the court does not render his guilty plea void 
where there is no evidence that it constituted 
a part of the inducement to enter the plea. 
Overby v. State, 150 Ga. App. 319, 257 S.E.2d 
386 (1979). 

Finality of board's decisions. — Board 
controls prison system and its administrative 
decisions are final absent violation of rights 
enforceable in the courts; thus, enumeration 
of error is waived where defendant admits 
that the trial court and the district attorney 
kept their part of the agreement. Overby v. 
State, 150 Ga. App. 319, 257 S.E.2d 386 
(1979). 

Cited in Ricketts v. Brantley, 239 Ga. 151, 
236 S.E.2d 51 (1977); Wise v. Balkcom, 245 
Ga. 126, 263 S.E.2d 158 (1980); Whiddon v. 
State, 160 Ga. App. 777, 287 S.E.2d 114 
(1982); Welch v. State, 172 Ga. App. 654, 324 
S.E.2d488 (1984). 



OPINIONS OF THE ATTORNEY GENERAL 



Felons must serve sentence under depart- 
ment's custody. — Since all convicted felons 
sentenced to a term of incarceration now 
serve their sentences under the jurisdiction 
of the department, judges of the superior 
courts lack the authority to sentence an 
inmate to the custody of any other person or 
entity. 1993 Op. Att'y Gen. No. 93-17. 

Pending appeal, department cannot take 
custody of prisoner. — The department 
cannot, without a valid request from the 



prisoner or his attorney, take custody of a 
prisoner whose motion for new trial has 
been denied and whose attorney has stated 
that he will file an appeal within the re- 
quired 30 days, so long as this time has not 
expired. 1973 Op. Att'y Gen. No. 73-153. 

Finality of convictions. — During the 
30-day period in which an appeal may be 
filed, a conviction is not final within the 
meaning of subsection (a) of this section; 
accordingly, unless there has been a valid 



176 



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STATE/COUNTY CORRECTIONAL INSTITUTIONS 



42-5-50 



request for transfer, the department cannot 
assume lawful custody of the prisoner. 1973 
Op. Att'y Gen. No. 73-153 (rendered prior to 
1983 amendment). 

Restrictions as to incarceration in 
board-operated institution. — An individual 
awaiting disposition of a pending criminal 
charge and who is not serving a sentence in 
the state correctional system may not be 
incarcerated in an institution operated by 
the Board of Corrections. 1970 Op. Att'y 
Gen. No. 70-111. 

Summons in lieu of indictment or accusa- 
tion. — Where an inmate has been brought 
to trial and convicted upon a summons, 
rather than an indictment or an accusation, 
the clerk of the court in which the convic- 
tion was returned must furnish to the De- 
partment of Offender Rehabilitation (Cor- 
rections) a certified copy of that summons; 
in such cases, the certified copy of the 
summons stands in lieu of an indictment or 
accusation. 1969 Op. Att'y Gen. No. 69-517. 

Lost indictment. — Clerk's certification 
that indictment is lost is not sufficient re- 
placement for a certified copy of the actual 
indictment. 1970 Op. Att'y Gen. No. 70-61. 

Because the General Assembly contem- 
plated receipt of the document specifying 
the charge of which the inmate had been 
found guilty, a clerk's certification that the 
indictment is lost is not sufficient replace- 
ment for a certified copy of the actual indict- 
ment. 1969 Op. Att'y Gen. No. 69-517. 

Whether punishment computed on basis 
of felony or misdemeanor. — Whether pun- 
ishment is computed on the basis of a felony 
or a misdemeanor sentence is controlled by 
the conviction; a prisoner is either a 
misdemeanant or a felon, dependent on the 
crime for which he was convicted. 1970 Op. 
Att'y Gen. No. 70-49. 

When sentence contains reduction of an 
offense from felony to misdemeanor, sen- 
tence should be computed as a misde- 
meanor because those authorized to fix the 
sentence have elected to so treat it. 1970 Op. 
Att'y Gen. No. 70-49. 

A sentence does not have a shifting qual- 
ity, allowing it to vacillate between misde- 



meanor and felony status at different times 
or for different purposes. 1970 Op. Att'y 
Gen. No. 70-49. 

Presumption of validity of sentence. — 
When the director of corrections (now com- 
missioner of corrections) receives the certif- 
icate of the clerk of the sentencing court, the 
presumption is that the sentence imposed is 
a valid sentence. 1977 Op. Att'y Gen. No. 
77-71. 

Board prescribes conditions of work re- 
quired of prisoners. — In view of the broad 
language found in subsection (e) of 
§ 42-5-60 that prison labor could be re- 
quired in public buildings in any such man- 
ner as deemed advisable by the Board of 
Offender Rehabilitation (Corrections), it is 
obvious that the legislature intended the 
board to prescribe the conditions of work 
required of the prisoners; and even though 
some of the prisoners are physically re- 
strained for overnight periods in county 
jails, their primary assignment is nonetheless 
to the prison or public work camp (now 
county correctional institution) as deter- 
mined by the commissioner; in turn the 
prison or camp has sole administrative re- 
sponsibility and control of the prisoner even 
though he may be temporarily attached to 
the county jail to perform the required 
repair or maintenance services; such a tem- 
porary attachment is not an assignment 
which contravenes the language of this sec- 
tion. 1963-65 Op. Att'y Gen. p. 72. 

Data on inmates' jail time prior to trial. — 
The director of corrections (now commis- 
sioner of corrections) is authorized to devise 
and distribute such forms as may be neces- 
sary to implement §§ 17-10-11 and 17-10-12 
(relating to time spent in confinement await- 
ing trial) ; the director may require that data 
concerning the number of days an inmate 
spent in jail prior to trial be transmitted to 
the Board of Corrections upon forms ap- 
proved and distributed by the board. 1970 
Op. Att'y Gen. No. 70-127. 

Vehicles to transport prisoners. — There 
are no specific requirements as to types of 
vehicles which may be used to transport 
prisoners. 1962 Op. Att'y Gen. p. 382. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, §§ 34, 154. 



C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, §§ 20-26, 130, 131. 



177 



42-5-51 PENAL INSTITUTIONS 42-5-51 

ALR. — Validity of statute empowering tentiary inmate of reformatory, 95 ALR 
administrative officials to transfer to peni- 1455. 

42-5-51. Jurisdiction over certain misdemeanor offenders; designation of 
place of confinement of inmates; reimbursement of county; trans- 
fer of inmates to federal authority. 

(a) The department shall have no authority, jurisdiction, or responsibil- 
ity with respect to misdemeanor offenders sentenced under paragraph (1) 
of subsection (a) of Code Section 17-10-3 to confinement in the county or 
other jail, county correctional institution, or such other places as counties 
may provide for maintenance of county inmates. The county wherein the 
sentence is imposed shall have the sole responsibility of executing the 
sentence and of providing for the care, maintenance, and upkeep of the 
inmate while serving such sentence; provided, however, that, where the 
sentencing judge certifies to the department that the county facilities of that 
county are inadequate for maintaining female inmates, any female inmate 
may be committed to the department to serve her sentence in a state 
correctional institution, as may be directed by the department; provided, 
further, that the delivery of the female inmates to the proper place of 
incarceration shall be at the expense of the county of conviction. 

(b) Where any person is convicted of any offense, misdemeanor, or 
felony and sentenced to serve time in any penal institution in this state 
other than as provided in subsection (a) of this Code section, he shall be 
committed to the custody of the commissioner who, with the approval of 
the board, shall designate the place of confinement where the sentence 
shall be served. 

(c) After proper documentation is received from the clerk of the court, 
the department shall have 15 days to transfer an inmate under sentence to 
the place of confinement. If the inmate is not transferred within the 15 
days, the department will reimburse the county, in a sum not less than $7.50 
per day per inmate and in such an amount as may be appropriated for this 
purpose by the General Assembly, for the cost of the incarceration, 
commencing 15 days after proper documentation is received by the 
department from the clerk of the court. The reimbursement provisions of 
this Code section shall only apply to payment for the incarceration of felony 
inmates available for transfer to the department, except inmates under 
death sentence awaiting transfer after their initial trial, and shall not apply 
to inmates who were incarcerated under the custody of the commissioner at 
the time they were returned to the county jail for trial on additional charges 
or returned to the county jail for any other purposes, including for the 
purpose of a new trial. 

(d) Notwithstanding any language in the sentence as passed by the court, 
the commissioner may designate as a place of confinement any available, 
suitable, and appropriate state or county correctional institution in this 

178 



42-5-51 



STATE/COUNTY CORRECTIONAL INSTITUTIONS 



42-5-51 



state operated under the jurisdiction or supervision of the department. The 
commissioner shall also have sole authority to transfer inmates from one 
state or county correctional institution in this state to any other such 
institution operated by or under the jurisdiction or supervision of or 
approved by the board. Neither male nor female state inmates shall be 
assigned to serve in any manner in a county jail unless they are participating 
in a state sponsored project and have the approval of the commissioner and 
the sheriff or the jail administrator of the county. Furthermore, the 
commissioner may transfer to the Attorney General of the United States for 
confinement any inmate if it is determined that the custody, care, treat- 
ment, training, or rehabilitation of the inmate has not been adequate or in 
the best interest of the inmate or his fellow inmates. The commissioner is 
authorized to contract with the Attorney General of the United States for 
the custody, care, subsistence, housing, treatment, training, and rehabilita- 
tion of such inmates. (Ga. L. 1956, p. 161, § 13; Ga. L. 1964, p. 489, § 2; Ga. 
L. 1968, p. 1399, § 1; Ga. L. 1972, p. 582, § 1; Ga. L. 1973, p. 1297, § 1; Ga. 
L. 1979, p. 376, § 1; Ga. L. 1981, p. 1434, § 1; Ga. L. 1982, p. 1364, § 2; Ga. 
L. 1984, p. 604, § 1; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1.) 

Law reviews. — For article surveying leg- local government law for 1978-79, see 31 
islative and judicial developments in Georgia Mercer L. Rev. 155 (1979). 

JUDICIAL DECISIONS 



The function of the prison commission 

(now Board of Corrections) is to enforce 
sentences that are lawfully imposed, and the 
question as to whether a court is acting 
within its jurisdiction in modifying a sen- 
tence is in nowise affected by this section. 
Gobies v. Hayes, 194 Ga. 297, 21 S.E.2d 624 
(1942) (decided under former Code 1933, 
§ 77-313). 

Board of Corrections controls prison sys- 
tem and its administrative decisions are final 
absent violation of rights enforceable in the 
courts; this enumeration of error is waived 
where defendant admits that the trial court 
and the district attorney have kept their part 
of the agreement. Overby v. State, 150 Ga. 
App. 319, 257 S.E.2d 386 (1979). 

Absent evidence of defendant's induce- 
ment guilty plea not void. — Defendant's 
dissatisfaction as to his incarceration in an 
institution other than the one recom- 
mended by the court does not render his 
guilty plea void, where there is no evidence 
that it constituted a part of the inducement 
to enter the plea. Overby v. State, 150 Ga. 
App. 319, 257 S.E.2d 386 (1979). 

Language in sentence designating place of 
incarceration surplusage. — Where one 



guilty of a misdemeanor is sentenced to be 
"confined at labor at the State Penitentiary 
(Georgia State Prison) at Reidsville, Georgia, 
or such other place as the proper authority 
may direct," such portion of the sentence as 
seeks to designate the place of confinement, 
where no effort so to confine the prisoner is 
shown and since the director of the depart- 
ment of corrections (now commissioner of 
corrections) designates where most sen- 
tences are served, is mere surplusage, and, 
though technically not in the right form, is 
not such an irregularity as is hurtful to any 
right of liberty, or such a defect as makes the 
sentence void. Mathis v. Scott, 199 Ga. 743, 
35 S.E.2d 285 (1945) (decided under Ga. L. 
1937, p. 758). 

Superior court empowered to transfer ha- 
beas corpus petitioner. — A superior court 
in this state has the power to order a habeas 
corpus petitioner under sentence of state 
court transferred from one penal institution 
to another, where this is necessary to grant 
the petitioner's constitutional right to mean- 
ingful access to the courts. To the extent that 
there exists a conflict between the statutory 
authority vested in the department to trans- 



179 



42-5-51 



PENAL INSTITUTIONS 



42-5-51 



fer prisoners from one correctional institute 
to another, and the authority vested in the 
superior court to enforce the Constitution, 
the former must yield to the latter. James v. 
Hight, 251 Ga. 563, 307 S.E.2d 660 (1983). 
Cited in Wilkes County v. Arrendale, 227 
Ga. 289, 180 S.E.2d 548 (1971); In re Pris- 



oners Awaiting Transf., 236 Ga. 516, 224 
S.E.2d 905 (1976); McKenzey v. State, 140 
Ga. App. 402, 231 S.E.2d 149 (1976); Wise v. 
Balkcom, 245 Ga. 126, 263 S.E.2d 158 
(1980); Whiddon v. State, 160 Ga. App. 777, 
287 S.E.2d 114 (1982); Hawk v. Georgia 
Dep't of Cors., 44 F.3d 965 (11th Cir. 1995). 



OPINIONS OF THE ATTORNEY GENERAL 
Analysis 



General Consideration 
Custody of Prisoners 
Youthful Offenders 
Misdemeanants or Felons 



General Consideration 

Assignments to county correctional institu- 
tions. — Only the director of corrections 
(now commissioner of corrections) , with the 
approval of the Board of Corrections, may 
make assignments of state prisoners to 
county correctional institutions. 1975 Op. 
Att'y Gen. No. U75-93. 

Board prescribes conditions of work re- 
quired of prisoners. — In view of the broad 
language found in subsection (e) of 
§ 42-5-60 that prison labor could be re- 
quired in public buildings in any such man- 
ner as deemed advisable by the Board of 
Corrections, it is obvious that the legislature 
intended the board to prescribe the condi- 
tions of work required of the prisoners; and 
even though some of the prisoners are phys- 
ically restrained for overnight periods in 
county jails, their primary assignment is 
nonetheless to the prison or public work 
camp (now county correctional institution) 
as determined by the commissioner; in turn 
the prison or camp has sole administrative 
responsibility and control of the prisoner 
even though he may be temporarily attached 
to the county jail to perform the required 
repair or maintenance services; such a tem- 
porary attachment is not an assignment 
which contravenes the language of this sec- 
tion. 1963-65 Op. Att'y Gen. p. 72. 

Employment of inmates not prohibited. — 
There is no provision in the law to prohibit 
employment for most inmates, as long as the 
requirements of this section are met. 1980 
Op. Att'y Gen. No. 80-44. 

Part-time employment of "maintenance" 
inmates. — If a program is implemented 



allowing "maintenance" inmates to have 
part-time jobs, it must fit all of the require- 
ments of this section. 1980 Op. Att'y Gen. 
No. 80-44. 

Though a program for part-time employ- 
ment by "maintenance" inmates by center 
personnel could be developed under this 
section for "maintenance" inmates, it would 
be unwise. 1980 Op. Att'y Gen. No. 80-44. 

Presumption of validity of sentence. — 
When the director of corrections (now com- 
missioner of corrections) receives the certif- 
icate of the clerk of the sentencing court, the 
presumption is that the sentence imposed is 
a valid sentence. 1977 Op. Att'y Gen. No. 
77-71. 

Incarceration of federal prisoners in pe- 
nal system. — The Board of Corrections may 
not enter into a contract with the bureau of 
prisons for the incarceration of a federal 
prisoner in the penal system of this state. 
1968 Op. Att'y Gen. No. 68-86. 

Contracting with private consulting firm 
for operation of prerelease center. — Board 
cannot contract with a private consulting 
firm for operation of a prerelease center; 
even if such power existed, the director of 
corrections (now commissioner of correc- 
tions) does not have the authority to assign 
inmates committed to the custody of the 
board to such a private institution. 1973 Op. 
Att'y Gen. No. 73-72. 

Requests from county probation depart- 
ment for retention of custody of inmate 
pending arrival of deputy sheriff or proba- 
tion officer must be disregarded by the 
wardens. 1969 Op. Att'y Gen. No. 69-151. 

Commitment of prisoners to county cor- 
rectional institution by recorder's court. — A 



180 



42-5-51 



STATE/COUNTY CORRECTIONAL INSTITUTIONS 



42-5-51 



recorder's court would have the authority to 
commit an individual to a county public 
works camp (now county correctional insti- 
tution) which operates under the jurisdic- 
tion of the Board of Corrections, provided 
that the city prisoners committed are not 
required to work on the county public works 
camp (now county correctional institution); 
that they are otherwise separated from 
county prisoners convicted of state felonies 
and misdemeanors; and that the receiving 
county is compensated for the board and 
upkeep of such city prisoners. 1968 Op. Att'y 
Gen. No. 68-175. 

Vehicles to transport prisoners. — There 
are no specific requirements as to types of 
vehicles which may be used to transport 
prisoners. 1962 Op. Att'y Gen. p. 382. 

Custody of Prisoners 

Felons must serve sentence under depart- 
ment's custody. — Since all convicted felons 
sentenced to a term of incarceration now 
serve their sentences under the jurisdiction 
of the department, judges of the superior 
courts lack the authority to sentence an 
inmate to the custody of any other person or 
entity. 1993 Op. Att'y Gen. No. 93-17. 

The obligation of department to accept 
prisoner into state penal system arises only 
upon (1) "sentencing" of prisoner to actu- 
ally serve time in state institution and (2) 
receipt by department of proper documen- 
tation of sentence by clerk of court. 1982 
Op. Att'y Gen. No. 82-33. 

Upon revocation of parole and the sen- 
tencing to serve time in a penal institution, 
the state has an obligation to accept such 
persons into the state penal system. 1982 Op. 
Att'y Gen. No. 82-33. 

Pending appeal department cannot take 
custody of prisoner. — The Department of 
Corrections cannot, without a valid request 
from the prisoner or his attorney, take cus- 
tody of a prisoner whose motion for new trial 
has been denied and whose attorney has 
stated that he will file an appeal within the 
required 30 days, so long as this time has not 
expired. 1973 Op. Att'y Gen. No. 73-153 
(rendered prior to 1982 amendment). 

Finality of conviction. — During the 
30-day period in which an appeal may be 
filed, a conviction is not final within the 
meaning of subsection (a) of § 42-5-50; ac- 
cordingly, unless there has been a valid 



request for transfer, the Department of Cor- 
rections cannot assume lawful custody of the 
prisoner. 1973 Op. Att'y Gen. No. 73-153 
(rendered prior to 1982 amendment). 

Restrictions as to incarceration in 
board-operated institution. — An individual 
awaiting disposition of a pending criminal 
charge and who is not serving a sentence in 
the state correctional system may not be 
incarcerated in an institution operated by 
the Board of Corrections. 1970 Op. Att'y 
Gen. No. 70-111. 

Custody of prisoners sentenced to death. 
— The supervening events described by 
§ 17-10-33 do not include filing motion for 
new trial so that such nonfinality of convic- 
tion which, by the terms of subsection (a) of 
§ 42-5-50, precludes acceptance of custody 
of prisoners "sentenced to serve time" (sub- 
section (b) of this section), does not in the 
case of prisoners sentenced to be executed, 
preclude acceptance of custody; the proce- 
dure of retention of convicted prisoners in 
the county jails until their convictions have 
become final, as provided in subsection (a) 
of § 42-5-50, does not apply to persons sen- 
tenced to death, because (1) they are not 
"sentenced to serve time" (subsection (b) of 
this section) and therefore do not have 
"such a sentence," in the words of subsec- 
tion (a) of § 42-5-50, and, (2) § 17-10-33 
specifically requires the sheriff to convey 
them to the penitentiary unless (a) the 
Governor directs otherwise, or (b) a stay has 
been caused by appeal, or (c) a new trial has 
been granted, or (d) a court orders other- 
wise. 1971 Op. Att'y Gen. No. 71-188. 

Youthful Offenders 

Board designated sole agency for recep- 
tion and assignment. — As a general rule, 
the legislature has designated the Board of 
Offender Rehabilitation (Corrections) sole 
agency for reception and assignment of con- 
victed misdemeanants and felons. Notable 
exceptions to this general provision concern 
individuals convicted of misdemeanors who, 
under certain conditions, must be placed in 
a county institution and, under other condi- 
tions, may be placed in such facilities in the 
discretion of the trial court; and one notable 
exception provides that the Division for Chil- 
dren and Youth is designated the exclusive 
state agency for the acceptance and incarcer- 
ation of all misdemeanants and felons under 



181 



42-5-51 



PENAL INSTITUTIONS 



42-5-51 



Youthful Offenders (Cont'd) 

the age of 17 years; provided, however, that 
those felons convicted of a capital felony 
shall only be sentenced into the custody of 
the Department of Offender Rehabilitation 
(Corrections). 1972 Op. Att'y Gen. No. 72-3. 

Restriction and discretion on releasing 
and assigning youthful offenders. — When a 
combination of youthful offender and stan- 
dard sentences occur, the Youthful Offender 
Division may not approve a conditional or 
unconditional release for the described 
youthful offender until his concurrent stan- 
dard sentence has expired; nevertheless, he 
could be assigned to an institution main- 
tained primarily for youthful offenders dur- 
ing the endre period for which the board is 
charged with custody over him, since Ga. L. 
1956, p. 161 (see § 42-5-50(b) and subsec- 
tions (b) and (d) of this section) empowers 
the board to assign inmates to any institution 
within its system, and § 42-7-8 authorizes the 
director of corrections (now commissioner 
of corrections) to segregate youthful offend- 
ers from other prisoners. 1973 Op. Att'y 
Gen. No. 73-82. 

Defined class of offenders set out. — 
Former paragraph (5) of subsection (a) of 
§ 49-5-7 set apart a defined class of offend- 
ers and directed how they were to be pun- 
ished for the offense; in doing this, the 
power of any superior court to try an indi- 
vidual under the age of 17 for any given 
crime was in no way affected; in this respect, 
§ 49-5-7 was like this section which provides 
that the commissioner of corrections and 
not the sentencing court designates the 
place of confinement of any individual 
within its jurisdiction. 1972 Op. Att'y Gen. 
No. 72-3. 



Misdemeanants or Felons 

Whether punishment computed on basis 
of felony or misdemeanor. — Whether pun- 
ishment is computed on the basis of a felony 
or a misdemeanor sentence is controlled by 
the conviction; a prisoner is either a 
misdemeanant or a felon, dependent on the 
crime for which he was convicted. 1970 Op. 
Att'y Gen. No. 70-49. 

When sentence contains reduction of an 
offense from felony to misdemeanor, sen- 
tence should be computed as a misde- 
meanor because those authorized to fix the 
sentence have elected to so treat it. 1970 Op. 
Att'y Gen. No. 70-49. 

Language in sentence designating place of 
incarceration. — All felons and 
misdemeanants, other than those 
misdemeanants committed directly to a 
county public works camp (now county cor- 
rectional institution), must be committed 
directly and exclusively to the Board of Cor- 
rections; only the director of corrections 
(now commissioner of corrections) is autho- 
rized to prescribe the place of confinement; 
so much of the language of a sentence 
committing an inmate to a term of penal 
servitude in the state prison system as pur- 
ports to commit the inmate to Central State 
Hospital is surplusage and should not be 
relied upon by the officials of the hospital or 
the Board of Corrections as authority for the 
retention of custody of the inmate at the 
hospital. 1970 Op. Att'y Gen. No. 70-133. 

Receipt of prisoners from mayor's court. 
— Board has authority to receive misde- 
meanor prisoners from a mayor's court of a 
municipality where there is no city or county 
court in that county. 1954-56 Op. Att'y Gen. 
p. 529. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, §§ 8, 9, 11, 13, 34, 
150, 154. 

C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, §§ 20-26, 130, 131, 136. 

ALR. — Validity of statute empowering 
administrative officials to transfer to peni- 
tentiary inmate of reformatory, 95 ALR 
1455. 

Validity, construction, and application of 



statutory provision for reimbursement of 
state (or subdivision thereof) for expense of 
keeping prisoner, 139 ALR 1028. 

What felonies are inherendy or 
foreseeably dangerous to human life for 
purposes of felony-murder doctrine, 50 
ALR3d 397. 

Immunity of public officer from liability 
for injuries caused by negligendy released 
individual, 5 ALR4th 773. 



182 



42-5-52 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-52 

Right of incarcerated mother to retain state statute requiring inmate to reimburse 

custody of infant in penal institution, 14 government for expense of incarceration, 13 

ALR4th 748. ALR5th 872. 

Validity, construction, and application of 

42-5-52. Classification and separation of inmates generally; placement of 
juvenile offenders and of females; transfer of mentally diseased, 
alcoholic, drug addicted, or tubercular inmates. 

(a) The department shall provide for the classification and separation of 
inmates with respect to age, first offenders, habitual criminals and 
incorrigibles, diseased inmates, mentally diseased inmates, and those 
having contagious, infectious, and incurable diseases. Incorrigible inmates 
in county correctional institutions shall be returned to the department at 
the request of the proper county authority. 

(b) The department may establish separate correctional or similar 
institutions for the separation and care of juvenile offenders. The commis- 
sioner may transfer any juvenile under 17 years of age from the penal 
institution in which he is serving to the Department of Juvenile Justice, 
provided that the transfer is approved thereby. The juvenile may be 
returned to the custody of the commissioner when the commissioner of 
juvenile justice determines that the juvenile is unsuited to be dealt with 
therein. 

(c) Female inmates shall be removed from proximity to the place of 
detention for males and shall not be confined in a county correctional 
institution or other county facility except with the express written approval 
of the department. 

(d) The department is authorized to transfer a mentally diseased inmate 
from a state or county correctional institution or other facility operating 
under its authority to a criminal ward or facility of the Department of 
Human Resources. The inmate shall remain in the custody of the Depart- 
ment of Human Resources until proper officials of the facility at which he 
is detained declare that his sanity has been restored, at which time the 
inmate shall be returned to the custody of the department. At any time after 
completion of his sentence, an inmate detained by the Department of 
Human Resources on the grounds that he is mentally diseased may petition 
for release in accordance with the procedure provided in Chapter 3 of Tide 
37. Prior to completion of his sentence, this procedure shall not be available 
to him. 

(e) Upon being presented with a proper certification from the county 
physician of a county where a person has been sentenced to confinement 
that the person sentenced is addicted to drugs or alcohol to the extent that 
his health will be impaired or his life endangered if immediate treatment is 
not rendered, the department shall transfer the inmate to the custody of the 
Department of Human Resources. The inmate shall remain in such custody 

183 



42-5-52 



PENAL INSTITUTIONS 



42-5-52 



until officials of the Department of Human Resources determine he is able 
to serve his sentence elsewhere. 

(f ) The department may transfer any inmate afflicted with active tuber- 
culosis from any state or county correctional institution, or any other facility 
operating under the authority of the department, to a tubercular ward or 
facility specially provided and maintained for criminals by the department 
at a tuberculosis facility or facilities operating under the Department of 
Human Resources. (Ga. L. 1897, p. 71, § 8; Penal Code 1910, § 1203; Ga. 
L. 1931, Ex. Sess., p. 118, §§ 8, 9; Code 1933, §§ 77-317, 77-318, 77-319; Ga. 
L. 1956, p. 161, § 14; Ga. L. 1957, p. 477, § 2; Ga. L. 1960, p. 234, § 1; Ga. 
L. 1962, p. 699, § 1; Ga. L. 1991, p. 94, § 42; Ga. L. 1992, p. 1983, § 21; Ga. 
L. 1997, p. 1453, §§ 1, 2.) 



The 1997 amendment, effective July 1, 
1997, in subsection (b), substituted "Depart- 
ment of Juvenile Justice" for "Department 
of Children and Youth Services" in the 
second sentence and substituted "commis- 
sioner of juvenile justice" for "commissioner 
of children and youth services" in the third 
sentence. 

Cross references. — Provision that a child 



shall not be committed to penal institution 
or other facility used primarily for execution 
of sentences of persons convicted of crime, 
§ 15-11-38. 

Law reviews. — For note, "Behind Closed 
Doors: An Empirical Inquiry Into the Nature 
of Prison Discipline in Georgia," see 8 Ga. L. 
Rev. 919 (1974). 



JUDICIAL DECISIONS 



Confinement of drug addict not cruel and 
unusual punishment. — Where defendant's 
physician certified that she was a drug addict 
and withdrawal from drugs was inadvisable, a 
sentence of 12 months and a fine of $500.00 
was not cruel and unusual punishment in 
light of subsection (e) of this section. 



Trammell v. State, 125 Ga. App. 39, 186 
S.E.2d438 (1971). 

Cited in Irwin v. Arrendale, 117 Ga. App. 
1, 159 S.E.2d 719 (1967); Wilson v. Kelley, 
294 F. Supp. 1005 (N.D. Ga. 1968); Wilkes 
County v. Arrendale, 227 Ga. 289, 180 S.E.2d 
548 (1971). 



OPINIONS OF THE ATTORNEY GENERAL 



Transfer of inmate to mental hospital. — 

The Board of Corrections can transfer an 
inmate to Central State Hospital for treat- 
ment as a mentally diseased inmate; if he is 
declared sane prior to completion of his 
existing sentence, he can be returned to 
stand trial for outstanding charges. 1970 Op. 
Att'y Gen. No. 70-72. 

Subsections (a) and (c) of this section, 
§§ 42-2-8 and 42-2-9, indicate that the direc- 
tor of the Board of Corrections (now com- 
missioner of corrections) is authorized to 
determine whether or not an inmate is men- 
tally diseased and should be transferred to a 
state mental hospital. 1968 Op. Att'y Gen. 
No. 68-136. 

Retention of administrative control over 



transferred prisoners. — By implication 
from the language of this section, the Board 
of Corrections retains a certain amount of 
administrative control over a prisoner trans- 
ferred to the criminal facilities at Central 
State Hospital. 1975 Op. Att'y Gen. No. 
75-146. 

Transfer to state hospital of alcoholic or 
drug addict prisoners. — In order that an 
alcoholic or drug addict who is a prisoner be 
transferred to a state hospital, the county 
physician must certify that the health of the 
prisoner will be impaired or his life endan- 
gered unless treatment is received. 1962 Op. 
Att'y Gen. p. 381. 

Removal of alcoholic prisoner to other 
institution. — Where prisoner certified to be 



184 



42-5-52. 1 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-52. 1 

alcoholic and sent to a state hospital, he may Administration of shock treatment to pris- 

be removed to another prison when hospital oners. — Convicted felons should and will 

authorities determine he is able to serve only be given shock treatment at the 

sentence elsewhere. 1962 Op. Att'y Gen. p. Milledgeville State Hospital (now Central 

378. State Hospital) and then only when pre- 

Good time allowances for mentally ill pris- scribed by a staff physician of that hospital. 

oners. — Board of Corrections has the 1965-66 Op. Att'y Gen. No. 66-214. 

power to promulgate rules and regulations Responsibility for returning an insane fu- 

as to good time allowances which are appli- gitive convict to the state is on the Depart- 

cable to prisoners transferred to Central ment of Corrections. 1945-47 Op. Att'y Gen. 

State Hospital due to mental illness. 1975 p. 427 (decided under former Code 1933, 

Op. Att'y Gen. No. 75-146. § 77-401). 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and prisoner directly caused by assault by other 

Correctional Institutions, §§ 34, 94, 95, 153. prisoner, 41 ALR3d 1021. 

C.J.S. — 72 C.J.S., Prisons and Rights of Authority of court to order juvenile delin- 

Prisoners, §§ 25, 26, 86, 87, 130, 131, 138. quent incarcerated in adult penal institu- 

ALR. — Constitutionality of statutes in tion, 95 ALR3d 568. 

relation to treatment or discipline of con- Right of incarcerated mother to retain 

victs, 50 ALR 104. custody of infant in penal institution, 14 

Liability of prison authorities for injury to ALR4th 748. 

42-5-52.1. Submission to HIV test; separate housing for HIV infected 
persons. 

(a) Any term used in this Code section and denned in Code Section 
31-22-9.1 shall have the meaning provided for that term in Code Section 
31-22-9.1. 

(b) Where any person is committed to the custody of the commissioner 
to serve time in any penal institution of this state on and after July 1, 1988, 
the department shall require that person to submit to an HIV test within 30 
days after the person is so committed unless that person is in such custody 
because of having committed an AIDS transmitting crime and has already 
submitted to an HIV test pursuant to Code Section 17-10-15. 

(c) No later than December 31, 1991, the department shall require to 
submit to an HIV test each person who has been committed to the custody 
of the commissioner to serve time in a penal institution of this state and who 
remains in such custody, or who would be in such custody but for having 
been transferred to the custody of the Department of Human Resources 
under Code Section 42-5-52, if that person has not submitted to an HIV test 
following that person's most recent commitment to the custody of the 
commissioner and unless that person is in such custody because of having 
committed an AIDS transmitting crime and has already submitted to an 
HIV test pursuant to Code Section 17-10-15. 

(d) Upon failure of an inmate to cooperate in HIV test procedures 
under this Code section, the commissioner may apply to the superior court 

185 



42-5-52.1 PENAL INSTITUTIONS 42-5-52.1 

for an order authorizing the use of such measures as are reasonably 
necessary to require submission to the HIV test. Nothing in this Code 
section shall be construed to limit the authority of the department to 
require inmates to submit to an HIV test. 

(e) Any person determined by the department to be an HIV infected 
person, whether or not by the test required by this Code section, should be 
housed separately at existing institutions from any other persons not 
infected with HIV if: 

(1) That person is reasonably believed to be sexually active while 
incarcerated; 

(2) That person is reasonably believed to be sexually predatory either 
during or prior to incarceration; or 

(3) The commissioner determines that other conditions or circum- 
stances exist indicating that separate confinement would be in the best 
interest of the department and the inmate population, 

but neither the department nor any officials, employees, or agents thereof 
shall be civilly or criminally liable for failing or refusing to house HIV 
infected persons separately from any other persons who are not HIV 
infected persons. (Code 1981, § 42-5-52.1, enacted by Ga. L. 1988, p. 1799, 
§ 9.) 

Editor's notes. — Ga. L. 1988, p. 1799, our citizens can learn how the disease is 

§ 1, provides: "The General Assembly finds transmitted and, thus, how to protect them- 

that Acquired Immunodeficiency Syndrome selves and prevent its spread. The Depart- 

(AIDS) and its causative agent, including ment of Human Resources is encouraged to 

Human Immunodeficiency Virus (HIV), continue its efforts to educate all Georgians 

pose a grave threat to the health, safety, and about the disease, its causative agent, and its 

welfare of the people of this state. In the means of transmission. In addition, volun- 

absence of any effective vaccination or treat- tary testing should be encouraged for any- 

ment for this disease, it threatens almost one who feels at risk of infection. While 

certain death to all who contract it. The education, counseling, and voluntary testing 

disease is largely transmitted through sexual are vital to the elimination of this epidemic, 

contacts and intravenous drug use, not other measures are needed to protect the 

through casual contact, and, while deadly, is health of our citizens, and it is the intention 

therefore preventable. The key component of the General Assembly to enact such mea- 

of the fight against AIDS is education. sures in the exercise of its police powers in 

Through public education and counseling order to deal with AIDS and HIV infection." 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and C.J.S. — 72 C.J.S., Prisons and Rights of 
Correctional Institutions, §§ 91, 154. Prisoners, §§ 80, 84, 85, 130, 138. 



186 



42-5-53 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-53 

42-5-53. Establishment of county correctional institutions; supervision by 
department; quota of inmates; funding; confinement and with- 
drawal of inmates. 

(a) Subject to the provisions stated in this Code section, any county may 
purchase, rent, establish, construct, and maintain a county correctional 
institution for the care and detention of all inmates assigned to it by the 
department. The county may contract with other counties relative to the 
joint care, upkeep, and working of the inmates in such counties. Each 
county may pay its pro rata share of such expenses by taxes assessed and 
levied as provided by law. 

(b) All county correctional institutions established by the counties as 
provided in subsection (a) of this Code section shall be subject to 
supervision and control by the department, and the board shall promulgate 
rules and regulations governing the administration and operation thereof. 

(c) (1) Each county establishing a county correctional institution which 
complies with the rules and requirements established by the board and 
which is approved by the board shall receive a quota of inmates in 
accordance with such methods of apportionment as may be established 
by the board. 

(2) The department is authorized, pursuant to rules and regulations 
adopted by the board, to pay funds, in an amount appropriated by the 
General Assembly for the purposes specified in paragraph (1) of this 
subsection, for each state inmate assigned to a county correctional 
institution to the county operating the facility. The amount so paid shall 
be determined on the basis of an equal amount per day for each state 
inmate assigned to the county correctional institution. 

(3) Each county is authorized to use the money paid to it pursuant to 
paragraph (2) of this subsection for the operation and maintenance of 
the county correctional institution or may use the money so paid to 
supplant county funds or previous levels of county funding for the county 
correctional institution. Following a full hearing, the board is given the 
authority to withhold payment or withdraw all inmates from any county 
correctional institution which does not at any time meet or comply with 
the rules, regulations, and requirements of the board or comply with its 
directions. 

(d) In all cases in which an inmate is the sole responsibility of a county 
and the board has no authority, jurisdiction, or responsibility with respect to 
the sentence of the inmate, the county may confine the inmate in a county 
correctional institution established pursuant to this Code section. Counties 
without a county correctional institution may contract with counties having 
a county correctional institution to maintain the inmate. 

(e) Nothing in this Code section shall be construed to prohibit the board 
from withdrawing inmates from any county correctional institution which 

187 



42-5-53 PENAL INSTITUTIONS 42-5-53 

does not at any time comply with the rules and regulations of the board 
promulgated pursuant to Code Section 42-5-10 or from withdrawing 
inmates from any county correctional institution which does not at any time 
meet the requirements of the board or comply with its directives. For 
reasons other than the failure to comply with the rules, regulations, 
requirements, and directives, the board is authorized to withdraw all 
inmates under its jurisdiction from all county correctional institutions 
under the following conditions: 

(1) That such withdrawal shall include all inmates under the jurisdic- 
tion of the board assigned to all county correctional institutions and that 
the withdrawal shall be completed within one year after the effective date 
of the beginning of the withdrawal; 

(2) That all county correctional institutions shall be notified at least 
one year in advance of the effective date of the beginning of the 
withdrawal; 

(3) That each county affected by the withdrawal shall have the option 
of selling or leasing its county correctional institution to the department, 
provided the State Institutions and Property Committee of the House of 
Representatives and the Corrections, Correctional Institutions and Prop- 
erty Committee of the Senate shall certify to the department that the 
facility is suitable for inmate housing and provided, further, that the sale 
price of the facility or the lease rental payments for the facility shall be 
determined by a board of three appraisers selected as follows: 

(A) One to be selected by the department; 

(B) One to be selected by the governing authority of the county; 
and 

(C) The third to be selected by the other two appraisers; 

(4) That each county affected by the withdrawal shall have 30 days 
from the date of the issuance of the notice required by paragraph (2) of 
this subsection to notify the department that the facility is to be sold to 
the department, the facility is to be leased to the department, or the 
county will keep and maintain the facility for its own use. If the 
department is not so notified within the time limitation, the department 
shall be under no obligation to lease or purchase the facility; 

(5) That if the county elects to sell or lease the facility, the committees 
named in paragraph (3) of this subsection shall have 60 days from the 
time the department is notified of such decision in which to inspect the 
facility and make its recommendations and certification to the depart- 
ment; 

(6) That if any such facility is leased by the department, the term of the 
lease, the requirements relative to the repair, maintenance, and improve- 

188 



42-5-53 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-53 

ments of the facility by the county, and the requirements relative to the 
renewal of the lease shall be as agreed upon by the department and the 
governing authority of the county; and 

(7) That the sales price or lease rental payments for each facility and 
the requirements relative to the lease contract when the facility is leased 
shall be determined within six months after the issuance of the notice of 
the effective date of the beginning of the withdrawal required by 
paragraph (2) of this subsection and that, if they are not determined 
within the time limitation, the department shall be under no obligation 
to lease or purchase the facility. (Ga. L. 1956, p. 161, § 16; Ga. L. 1964, 
p. 491, § 1; Ga. L. 1970, p. 318, § 1; Ga. L. 1975, p. 908, § 1; Ga. L. 1980, 
p. 470, § 1; Ga. L. 1982, p. 3, § 42; Ga. L. 1985, p. 283, § 1; Ga. L. 1991, 
p. 94, § 42; Ga. L. 1995, p. 10, § 42.) 

The 1995 amendment, effective February paragraph (3) of subsection (e). 

21, 1995, part of an Act to correct errors and Code Commission notes. — Pursuant to 

omissions in the Code, substituted "Correc- Code Section 28-9-5, in 1989, a comma was 

tions, Correctional Institutions and Proper- deleted following "inmate housing and" in 

ty" for "Corrections" near the middle of paragraph (3) of subsection (e). 

JUDICIAL DECISIONS 

Cited in Wilson v.Kelley, 294 F.Supp. 1005 Arrendale, 227 Ga. 289, 180 S.E.2d 548 
(N.D. Ga. 1968); Wilkes County v. (1971). 

OPINIONS OF THE ATTORNEY GENERAL 

Distinction between state and county pris- institutions conducted by the state itself. 

oners continues. — Sections 42-2-11 and 1958-59 Op. Att'y Gen. p. 254. 

42-5-57 relate to "state prisoners" rather Board's control over lease by county. — 

than "county prisoners"; the distinction be- But the terms of any lease, etc., are subject to 

tween "state" and "county" prisoners con- approval and supervision of the Board of 

tinues in effect even though both may be Corrections, and it is entirely a matter of 

confined in a county work camp (now policy for the board to determine as to 

county correctional institution). 1970 Op. whether a proposed lease is acceptable. 

Att'y Gen. No. U70-134. 1958-59 Op. Att'y Gen. p. 254. 

Removal of prisoners from county institu- Use of city prisoners in county correc- 
tions for failure to hire qualified warden. — tional institutions precluded. — Exceptions 
If a county correctional institution fails to to the general category of prisoners set forth 
employ a warden who is duly qualified ac- in subsection (a) of this section must be 
cording to the requirements set forth by the explicitly set forth in the statute, as was done 
board, the board may remove all the prison- for county prisoners in subsection (d) of this 
ers from that institution. 1973 Op. Att'y Gen. section; this would preclude the use of city 
No. 73-41. prisoners in public works camps (now 

County rental of correctional institution, county correctional institutions). 1963-65 

— This section expressly authorizes county Op. Att'y Gen. p. 571. 

to rent a public works camp (now county County public works camps (now county 

correctional institution), and does not re- correctional institutions) are not "detention 

quire it to obtain fee simple tide as do the facilities" (see § 42-4-30) and are to be 

policies applicable to property acquired and regulated, as they have been in the past, by 

189 



42-5-54 PENAL INSTITUTIONS 42-5-54 

the Board of Corrections. 1973 Op. Att'y 
Gen. No. 73-117. 

RESEARCH REFERENCES 

ALR. — Institution for the punishment or alcoholics as enjoinable nuisance, 21 ALR3d 
rehabilitation of criminals, delinquents, or 1058. 

42-5-54. Information from inmates relating to medical insurance; provision 
and payment of medical treatment for inmates. 

(a) As used in this Code section, the term: 

(1) "Detention facility" means a county correctional institution, 
workcamp, or other county detention facility used for the detention of 
persons convicted of a felony or a misdemeanor. 

(2) "Inmate" means a person who is detained in a detention facility by 
reason of being convicted of a felony or a misdemeanor and who is 
insured under existing individual health insurance, group health insur- 
ance, or prepaid medical care coverage or is eligible for benefits under 
Article 7 of Chapter 4 of Title 49, the "Georgia Medical Assistance Act of 
1977." Such term does not include any sentenced inmate who is the 
responsibility of the Department of Corrections. 

(3) "Officer in charge" means the warden, captain, or superintendent 
having the supervision of any detention facility. 

(b) The officer in charge or his or her designee may require an inmate 
to furnish the following information: 

(1) The existence of any health insurance, group health plan, or 
prepaid medical care coverage under which the inmate is insured; 

(2) The eligibility for benefits to which the inmate is entitled under 
Article 7 of Chapter 4 of Title 49, the "Georgia Medical Assistance Act of 
1977"; 

(3) The name and address of the third-party payor; and 

(4) The policy or other identifying number. 

(c) The officer in charge will provide a sick, injured, or disabled inmate 
access to medical services and may arrange for the inmate's health 
insurance carrier to pay the health care provider for the medical services 
rendered. 

(d) The liability for payment for medical care described under subsec- 
tion (b) of this Code section may not be construed as requiring payment by 
any person or entity, except by an inmate personally or by his or her carrier 
through coverage or benefits described under paragraph (1) of subsection 

190 



42-5-55 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-55 

(b) of this Code section or by or at the direction of the Department of 
Medical Assistance pursuant to paragraph (2) of such subsection. 

(e) Nothing in this Code section shall be construed to relieve the 
governing authority, governmental unit, subdivision, or agency having the 
physical custody of an inmate from its responsibility to pay for any medical 
and hospital care rendered to such inmate regardless of whether such 
individual has been convicted of a crime. (Code 1981, § 42-5-54, enacted by 
Ga. L. 1996, p. 1081, § 3.) 

Effect of amendment. — This Code sec- by Ga. L. 1982, p. 1364, § 3 effective January 

tion became effective July 1, 1996. 1, 1983. 

Editor's notes. — This former Code sec- La W reviews. — For review of 1996 legisla- 
tion, relating to temporary transfer of con- tion relating to jails, see 13 Ga. St. U. L. Rev. 
victed persons pending appeals, was based 269 and 273. 
on Ga. L. 1971, p. 341, § 2, and was repealed 

42-5-55. Deductions from inmate accounts for payment of certain damages 
and medical costs; limit on deductions; fee for managing inmate 
accounts. 

(a) As used in this Code section, the term: 

(1) "Detention facility" means a state or county correctional institu- 
tion, workcamp, or other state or county detention facility used for the 
detention of persons convicted of a felony or a misdemeanor. 

(2) "Inmate" means a person who is detained in a detention facility by 
reason of being convicted of a felony or a misdemeanor. 

(3) "Medical treatment" means each visit initiated by the inmate to an 
institutional physician; physician's extender, including a physician's assis- 
tant or a nurse practitioner; registered nurse; licensed practical nurse; 
medical assistant; dentist; dental hygienist; optometrist; or psychiatrist for 
examination or treatment. 

(4) "Officer in charge" means the warden, captain, or superintendent 
having the supervision of any detention facility. 

(b) The commissioner or, in the case of a county facility, the officer in 
charge may establish by rules or regulations criteria for a reasonable 
deduction from money credited to the account of an inmate to: 

(1) Repay the costs of: 

(A) Public property willfully damaged or destroyed by the inmate 
during his or her incarceration; 

(B) Medical treatment for injuries inflicted by the inmate upon 
himself or herself or others; 

(C) Searching for and apprehending the inmate when he or she 
escapes or attempts to escape; such costs to be limited to those 
extraordinary costs incurred as a consequence of the escape; or 

191 



42-5-56 PENAL INSTITUTIONS 42-5-57 

(D) Quelling any riot or other disturbance in which the inmate is 
unlawfully involved; or 

(2) Defray the costs paid by the state or county for medical treatment 
for an inmate when the request for medical treatment has been initiated 
by the inmate. 

(c) The provisions of paragraph (2) of subsection (b) of this Code 
section shall in no way relieve the governmental unit, agency, or subdivision 
having physical custody of an inmate from furnishing him or her with 
needed medical treatment. 

(d) Notwithstanding any other provisions of this Code section, the 
deductions from money credited to the account of an inmate as authorized 
under subsection (b) of this Code section shall not be made whenever the 
balance in the inmate's account is $10.00 or less. 

(e) The officer in charge of any detention facility is authorized to charge 
a fee for establishing and managing inmate money accounts. Such fee shall 
not exceed $1.00 per month. (Code 1981, § 42-5-55, enacted by Ga. L. 
1996, p. 1081, § 3.) 

Effective date. — This Code section be- victed persons pending appeals and requests 
came effective July 1, 1996. by convicted person or his attorney for trans- 
Code Commission notes. — Pursuant to fer, was based on Ga. L. 1971, p. 341, § 3, 
Code Section 28-9-5, in 1996, "; or" was and Ga. L. 1974, p. 479, § 1. This former 
added at the end of subparagraph (b)(1)(D). Code section was repealed by Ga. L. 1982, p. 

Editor's notes. — This former Code sec- 1364, § 3, effective January 1, 1983. 
tion, relating to temporary transfer of con- 

42-5-56. 

Repealed by Ga. L. 1982, p. 1364, § 3, effective January 1, 1983. 

Editor's notes. — This Code section, relat- and regulations by the board, was based on 
ing to temporary transfer of convicted per- Ga. L. 1971, p. 341, § 4. 
sons pending appeal and adoption of rules 

42-5-57. Institution of rehabilitation programs; provision of opportunities 
for educational, religious, and recreational activities. 

(a) The board, acting alone or in cooperation with the Department of 
Education, the Board of Regents of the University System of Georgia, or the 
several state, local, and federal agencies concerned therewith shall be 
authorized to institute a program of rehabilitation, which may include 
academic, industrial, mechanical, agricultural, and vocational training, 
within the confines of a penal institution. 

(b) The department, in institutions under its control and supervision, 
shall give the inmates opportunity for reasonable educational, religious, 
and recreational activities where practicable. (Ga. L. 1956, p. 161, § 23; Ga. 
L. 1964, p. 734, § 1; Ga. L. 1968, p. 1399, § 4.) 

192 



42-5-57 



STATE/COUNTY CORRECTIONAL INSTITUTIONS 



42-5-57 



Administrative rules and regulations. — 

Institutional, center, and program services, 
Official Compilation of Rules and Regula- 



tions of State of Georgia, Rules of Georgia 
Board of Offender Rehabilitation, Chapters 
415-4-1 through 415-4-7. 



JUDICIAL DECISIONS 



Cited in Wilson v. Kelley, 294 F. Supp. 1005 
(N.D. Ga. 1968); Krist v. Smith, 309 F. Supp. 
497 (S.D. Ga. 1970). 



OPINIONS OF THE ATTORNEY GENERAL 



Application to state prisoners. — This 
section and § 42-2-11 relate to state prison- 
ers rather than county prisoners; the distinc- 
tion between "state" and "county" prisoners 
continues in effect even though both may be 
confined in a county work camp (now 
county correctional institution). 1970 Op. 
Att'y Gen. No. U70-134. 

Cost of instituting and maintaining aca- 
demic programs in conjunction with the 
Board of Regents is a legal expenditure for 
the Board of Offender Rehabilitation (Cor- 
rections). 1969 Op. Att'y Gen. No. 69-267. 

Prison authorities' discretion to regulate 
religious activities. — The Department of 
Offender Rehabilitation (Corrections) 
should not deny permission to all Jehovah's 
Witnesses' ministers to visit the prisons or to 
conduct services therein; however, the de- 
nial of permission in individual instances, in 
the discretion of prison authorities, would 
appear to be lawful as a valid exercise of the 
state's power to regulate religious activities 
for the safety and welfare of its citizens. 1967 
Op. Att'y Gen. No. 67-270. 

College attendance outside prison con- 
fines. — The provisions of this section are 
not sufficiently broad to include or permit 
inmates who may be qualified to attend 



college outside the confines of a state prison 
institution. 1967 Op. Att'y Gen. No. 67-1,19. 

Development of service-type industrial 
programs. — The Board of Corrections is 
authorized to develop service-type industrial 
programs such as furniture refinishing, but 
such programs may not be developed by the 
Georgia Prison Industries Administration 
(now Georgia Correctional Industries Ad- 
ministration). 1970 Op. Att'y Gen. No. 
70-156. 

Criterion for judging whether work per- 
formed by prisoner is prohibited is not 
whether the articles on which prisoner is 
working are publicly or privately owned; the 
real test is whether the transaction was for a 
good faith purpose rather than a subterfuge 
designed to benefit the private owner. 1967 
Op. Att'y Gen. No. 67-452. 

Use of prison store profits. — The Board 
of Corrections can use profits generated in a 
prison store to offset the expense of employ- 
ing an athletic director to direct athletic 
activities of inmates, by withdrawing such 
sums from the prison athletic fund and 
depositing the same in the treasury of the 
Board of Corrections. 1969 Op. Att'y Gen. 
No. 69-314. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, §§ 32, 33, 36-44, 
100, 101. 

C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, §§ 59, 70, 91-95. 



ALR. — Constitutionality of statutes in 
relation to treatment or discipline of con- 
victs, 50 ALR 104. 

Provision of religious facilities for prison- 
ers, 12 ALR3d 1276. 



193 



42-5-58 



PENAL INSTITUTIONS 



42-5-58 



42-5-58. Prohibition against corporal punishment; use of handcuffs, leg 
chains, and other restraints; permissible punishment generally. 

(a) Whipping of inmates and all forms of corporal punishment shall be 
prohibited. All shackles, manacles, picks, leg irons, and chains shall be 
barred from use as punishment by any penal institution operated under 
authority of the board. In transferring violent or potentially dangerous 
inmates within an institution or between facilities, handcuffs, leg chains, 
waist chains, and waist belts may be utilized. Handcuffs, leg chains, waist 
chains, and waist belts may also be used in securing violent or potentially 
dangerous inmates within an institution and in public and private areas 
such as hospitals and clinics; but in no event may handcuffs, leg chains, 
waist chains, and waist belts be used as punishment; provided, however, if 
the accused becomes violent in the courtroom, restraints may be used. 

(b) The department shall restrict punishment for an infraction of 
correctional rules and regulations to isolation and restricted diet or to 
uniform standard humane punishment which the department may deem 
necessary for the control of inmates. (Ga. L. 1956, p. 161, § 15; Ga. L. 1983, 
p. 1806, § 1; Ga. L. 1984, p. 22, § 42; Ga. L. 1989, p. 14, § 42.) 



Cross references. — Cruel and unusual 
punishment, U.S. Const., Amend. 8 and Ga. 
Const. 1983, Art. I, Sec. I, Para. XVII. Prohi- 
bition against whipping as punishment for 
crimes, Ga. Const. 1983, Art. I, Sec. I, Para. 
XXI. Penalty for assault, etc., by state officer 
under color of office or commission, 
§ 45-11-3. 

Administrative rules and regulations. — 



Discipline, Official Compilation of Rules 
and Regulations of State of Georgia, Rules of 
Georgia Board of Offender Rehabilitation, 
Chapter 415-3-2. 

Law reviews. — For note, "Behind Closed 
Doors: An Empirical Inquiry Into the Nature 
of Prison Discipline in Georgia," see 8 Ga. L. 
Rev. 919 (1974). 



JUDICIAL DECISIONS 



Editor's notes. — In light of the similarity 
of the provisions, decisions under former 
Code 1910, § 1176 are included in the an- 
notations for this Code secdon. 

One in charge of state convicts cannot act 
with unlawful evidence towards a person 
under his control; and if he does so, he may 
be guilty of a punishable offense. Loeb v. 
Jennings, 133 Ga. 796, 67 S.E. 101, 18 Ann. 
Cas. 376 (1910), aff 'd, 219 U.S. 582, 31 S. Ct. 
469, 55 L. Ed. 345 (1911). 

Corporal punishment. — A warden has no 
authority to administer corporal punish- 
ment to a convict, except such as may be 
reasonably necessary to compel the convict 
to work or to maintain proper discipline. 
Therefore, corporal punishment of a convict 



by a warden, administered where the circum- 
stances are not of a character sufficient to 
authorize such punishment is an assault. 
Westbrook v. State, 133 Ga. 578, 66 S.E. 788, 
25 L.R.A. (n.s.) 591, 18 Ann. Cas. 295 
(1909). 

Whipping of child by parents with 
court-supplied strap. — A judge is in viola- 
tion of this section where he permits parents 
to whip an eight-year-old child with a 
court-supplied strap, rather than subjecting 
the child to incarceration and a criminal 
record. In re Ellerbee, 248 Ga. 246, 282 
S.E.2d313 (1981). 

Cited in Wilkes County v. Arrendale, 227 
Ga. 289, 180 S.E.2d 548 (1971); Patterson v. 
MacDougall, 506 F.2d 1 (5th Cir. 1975). 



194 



42-5-59 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-59 

RESEARCH REFERENCES 

Am. Jur. 2d. — - 60 Am. Jur. 2d, Penal and ALR. — Constitutionality of statutes in 

Correctional Institutions, §§ 138, 141-146. relation to treatment or discipline of con- 

C.J.S. — 18 C.J.S., Convicts, §11. 72 victs, 50 ALR 104, 

C.J.S., Prisons and Rights of Prisoners, Prison conditions as amounting to cruel 

§§ 22, 26, 60. and unusual punishment, 51 ALR3d 111. 

42-5-59. Employment of inmates in the local community. 

(a) The commissioner shall extend the limits of the place of confine- 
ment of an inmate, if there is reasonable cause to believe the inmate will 
honor his trust, by authorizing the inmate, under prescribed conditions, to 
work at pdid employment or participate in a training program in the 
community on a voluntary basis while continuing as an inmate of the 
institution to which he is committed, provided that: 

(1) Representatives of local union central bodies or similar labor 
union organizations are consulted; 

(2) The paid employment will not result in the displacement of 
employed workers, be applied in skills, crafts, or trades in which there is 
a surplus of available gainful labor in the locality, or impair existing 
contracts for services; and 

(3) The rates of pay and other conditions of employment will not be 
less than those paid or provided for work of a similar nature in the locality 
in which the work is to be performed. 

(b) An inmate authorized to work at paid employment in the community 
under subsection (a) of this Code section shall comply with all rules and 
regulations promulgated by the board relative to the handling, disburse- 
ment, and holding in trust of all funds earned by the inmate while under 
the jurisdiction of the department. An amount determined to be the cost of 
the inmate's keep and confinement shall be deducted from the earnings of 
each inmate, and such amount shall be deposited in the treasury of the 
department; provided, however, that, if the inmate is assigned to a county 
correctional institution, the deducted amount shall be deposited in the 
treasury of the county to which the inmate is assigned. After the deduction 
for keep and confinement, the commissioner shall: 

(1) Allow the inmate to draw from the balance a reasonable sum to 
cover his incidental expenses; 

(2) Retain to the inmate's credit an amount as is deemed necessary to 
accumulate a reasonable sum to be paid to him on his release from the 
penal institution; 

(3) Deduct from the inmate's funds any amounts necessary to cover 
the costs of medical or dental attention provided to the inmate, said 

195 



42-5-59 



PENAL INSTITUTIONS 



42-5-59 



deductions to be made in accordance with policies and procedures 
promulgated by the commissioner; and 

(4) Cause to be paid any additional balance as is needed for the 
support of the inmate's dependents. 

(c) No inmate employed in the community under subsection (a) of this 
Code section shall be deemed to be an agent, employee, or involuntary 
servant of the department while working in the community or going to and 
from his employment. 

(d) The willful failure of an inmate to remain within the extended limits 
of his confinement or to return within the time prescribed to an institution 
designated by the commissioner shall be deemed an escape from a penal 
institution and shall be punishable by law. (Ga. L. 1956, p. 161, § 13; Ga. L. 
1968, p. 1399, § 1; Ga. L. 1969, p. 602, § 1; Ga. L. 1971, p. 435, § 1; Ga. L. 
1973, p. 1299, § 1; Ga. L. 1986, p. 1596, § 1; Ga. L. 1994, p. 97, § 42.) 



Administrative rules and regulations. — 

Work release, Official Compilation of Rules 
and Regulations of State of Georgia, Rules of 



Georgia Board of Offender Rehabilitation, 
Chapter 415-3-6. 



JUDICIAL DECISIONS 



Cited in Overby v. State, 150 Ga. App. 319, State, 160 Ga. 
257 S.E.2d 386 (1979); Wise v. Balkcom, 245 (1982). 
Ga. 126, 263 S.E.2d 158 (1980); Whiddon v. 



App. 777, 287 S.E.2d 114 



OPINIONS OF THE ATTORNEY GENERAL 



Statutory provisions mandatory. — The 

language of this section, and §§ 42-5-50 and 
subsection (d) of 42-5-51, is mandatory. 1977 
Op. Att'y Gen. No. 77-71. 

Performance of federal contracts. — This 
section fully complies with requirements set 
forth in Executive Order 11755 which pro- 
vides that nonfederal prison inmates may be 
employed in performance of federal con- 
tracts if the inmate participates in the 
work-release program on a voluntary basis, if 
representatives of local labor organizations 
have been consulted, if the inmate's employ- 
ment will not result in the displacement of 
employed workers or result in a surplus of 
laborers in the locality, and if the rates of pay 
and other conditions of employment are not 
less than those provided for similar work in 
the locality. 1974 Op. Att'y Gen. No. 74-125. 



Work-release programs. — A county may 
not recover its expenses in maintaining pris- 
oners employed in work-release programs. 
1969 Op. Att'y Gen. No. 69-248. 

The room and board charges of prisoners 
on work release (subsection (b) of this sec- 
tion) must be deposited into the state trea- 
sury. 1969 Op. Att'y Gen. No. 69-363. 

The work-release program does not autho- 
rize compensation of inmates for work per- 
formed in institutions. 1973 Op. Att'y Gen. 
No. 73-7. 

There is no authority for the superinten- 
dent of a correctional institution to allow 
work releasees to reside in their homes; a 
work releasee shall continue to be a prisoner 
of the institution to which he has been 
committed. 1974 Op. Att'y Gen. No. 74-116. 



196 



-' 



42-5-60 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-60 

RESEARCH REFERENCES 

Am. Jut. 2d. — 60 Am. Jur. 2d, Penal and What justifies escape or attempt to escape, 

Correctional Institutions, § 159. or assistance in that regard, 70 ALR2d 1430. 

ALR. — Validity of statute empowering Immunity of public officer from liability 

administrative officials to transfer to peni- f or injuries caused by negligendy released 

tentiary inmate of reformatory, 95 ALR individual, 5 ALR4th 773. 
1455. 

42-5-60. Hiring out of inmates; sale of products produced by inmates; 
disposition of proceeds; payment to inmates for services. 

(a) The board shall provide rules and regulations governing the hiring 
out of inmates by any penal institution under its authority to municipalities, 
cities, the Department of Transportation, and any other political subdivi- 
sion, public authority, public corporation, agency, or state or local govern- 
ment, which entities are authorized by this subsection to contract for and 
receive the inmates. Such inmates shall not be hired out to private persons 
or corporations, nor shall any instrumentality of government authorized by 
this subsection to utilize penal labor use such labor in any business 
conducted for profit, except as provided in Code Section 42-5-59; provided, 
however, inmate trainees enrolled in any vocational, technical, or educa- 
tional training program authorized and supported by the department may 
repair or otherwise utilize any privately owned property or equipment as 
well as any other property or equipment in connection with the activities of 
any such training program, so long as the repair or utilization contributes 
to the inmate's acquisition of any desired vocational, technical, or educa- 
tional skills. Notwithstanding any other provisions of this subsection, any 
private person, organization, or corporation with whom the commissioner 
has contracted for the land acquisition, design, construction, operation, 
maintenance, use, lease, or management of a state prison or for any services 
related to the custody, care, and control of inmates as authorized by Code 
Section 42-2-8 may utilize penal labor in the same manner as any such labor 
may be utilized by any other penal institution operated under the authority 
of the board. Agreements made pursuant to Code Section 42-2-8 for the 
land acquisition, design, construction, operation, maintenance, use, lease, 
or management of a state prison or for any services related to the care, 
custody, and control of inmates shall factor the value of penal labor such 
that the state is the only financial beneficiary of the same. 

(b) No goods, wares, or merchandise which has been manufactured, 
produced, or mined, wholly or in part, by the inmates of any state or county 
Correctional institution operated under the jurisdiction of the board shall 
be sold in this state to any private person, firm, association, or corporation, 
except that this prohibition shall not apply to: 

(1) Sales to private colleges and universities; or 

(2) A sale to a private contractor of goods, wares, or merchandise for 
use in the completion of a publicly funded project. 

197 



42-5-60 PENAL INSTITUTIONS 42-5-60 

Nothing in this subsection shall be construed to forbid the sale of such 
goods or merchandise to other political subdivisions, public authorities, 
municipalities, or agencies of the state or local governments to be con- 
sumed by them or to agencies of the state to be in turn sold by the agency 
to the public in the performance of the agency's duties as required by law. 
This subsection does not prohibit the sale of unprocessed agricultural 
products produced on state property. 

(c) Funds arising from the sale of goods or other products manufactured 
or produced by any state correctional institution operated by the depart- 
ment shall be deposited with the treasury of the department. The funds 
arising from the sale of goods and products produced in a county 
correctional institution or from the hiring out of inmates shall be placed in 
the treasury or depository of the county, as the case may be. The 
department is authorized, pursuant to rules and regulations adopted by the 
board, to pay compensation of not more than $25.00 per month from funds 
available to the department to each inmate employed in any industry, 

(d) Any superintendent, warden, guard, official, or other person who 
violates this Code section or any regulations promulgated pursuant thereto, 
relating to the sale of goods or products manufactured or produced in a 
correctional institution or the hiring out of inmates, shall be guilty of a 
misdemeanor. 

(e) The department or any state correctional institution or county 
correctional institution operating under jurisdiction of the board shall be 
authorized to require inmates coming into its custody to labor on the public 
roads or public works or in such other manner as the board may deem 
advisable. The department may also contract with municipalities, cities, 
counties, the Department of Transportation, or any other political subdivi- 
sion, public authority, public corporation, or agency of state or local 
government created by law, which entities are authorized by this Code 
section to contract with the department, for the construction, repair, or 
maintenance of roads, bridges, public buildings, and any other public works 
by use of penal labor. 

(f ) Any provision of this chapter to the contrary notwithstanding, any 
inmate of any state or county correctional institution operated under the 
jurisdiction of the board may sell goods, wares, and merchandise created by 
such inmate through the pursuit of a hobby or recreational activity. The 
proceeds from the sales shall be distributed to the particular inmate who 
created the goods, wares, or merchandise. The board is authorized to 
promulgate rules and regulations governing the sale of such goods, wares, 
and merchandise and the distribution of the proceeds from the sales. All 
goods, wares, and merchandise created by an inmate must be sold within 
the institution or on the institution grounds during visiting hours or when 
on off-duty assignments. (Ga. L. 1956, p. 161, § 22; Ga. L. 1957, p. 477, § 4; 
Ga. L. 1968, p. 1092, § 1; Ga. L. 1968, p. 1399, §§ 2, 3; Ga. L. 1971, p. 581, 

198 



42-5-60 



STATE/COUNTY CORRECTIONAL INSTITUTIONS 



42-5-60 



§ 1; Ga. L. 1972, p. 577, § 1; Ga. L. 1984, p. 651, § 1; Ga. L. 1985, p. 149, 
§ 42; Ga. L. 1992, p. 6, § 42; Ga. L. 1993, p. 629, § 1; Ga. L. 1997, p. 851, 

§ 2.) 



The 1997 amendment, effective April 21, 
1997, added the last two sentences in subsec- 
tion (a). 

Cross references. — Hiring out of inmates 
for public road projects, §§ 32-442, 32-4-91. 
Correctional Industries, Ch. 10 of this title. 
Use of inmate labor to abate hazard pre- 



sented by abandoned well or hole, § 44-1-14. 
Administrative rules and regulations. — 

Work release, Official Compilation of Rules 
and Regulations of State of Georgia, Rules of 
Georgia Board of Offender Rehabilitation, 
Chapter 415-3-6. 



JUDICIAL DECISIONS 



Editor's notes. — In light of the similarity 
of the provisions, decisions under former 
Penal Code 1910, § 1 166 are included in the 
annotations for this Code section. 

Charge against county for labor. — There 
is nothing in this and the following sections 
authorizing or requiring a charge to be 
made against a county for the labor of 
misdemeanor convicts sentenced by the 
courts in such county to work on its chain 
gang (now county facilities or programs). 
Binns v. Ficklen, 130 Ga. 377, 60 S.E. 1051 
(1908). 



A convict cannot be hired out to a private 
individual. County of Walton v. Franklin, 95 
Ga. 538, 22 S.E. 279 (1894). 

Law requiring county to pay for hire of 
misdemeanor convicts. — A special law re- 
quiring the county to pay for hire of misde- 
meanor convicts is unconstitutional, there 
being a general law relating to this subject. 
Binns v. Ficklen, 130 Ga. 377, 60 S.E. 1051 
(1908). 



OPINIONS OF THE ATTORNEY GENERAL 
Analysis 



General Consideration 

Rules Governing Hiring Out Inmates 

1. In General 

2. Public Works 

3. Private Endeavors 
Sale of Inmates' Products 

1. In General 

2. Within State 

3. Outside of State 

General Consideration 

Negotiation for use of prison labor in 
roads construction. — Any agreement for 
the use of prison labor in constructing roads 
by the state must be negotiated by the High- 
way Department (now Department of Trans- 
portation) and the governmental unit hav- 
ing custody of the prisoners. 1969 Op. Att'y 
Gen. No. 69-5. 

The board is authorized to develop 
service-type industrial program such as fur- 
niture refinishing, but such programs may 



not be developed by the Georgia Prison 
Industries Administration (now Georgia 
Correctional Industries Administration). 
1970 Op. Att'y Gen. No. 70-156. 

Transporting prisoners to job site. — No 
legal problem exists in transporting prison- 
ers by barge to a job site. 1969 Op. Att'y Gen. 
No. 69-5. 

Rules governing payments to inmates. — 
The place of confinement is irrelevant; if a 
state prisoner is engaged in an endeavor 
which may be classified as "industry," he 
would be eligible for incentive pay upon the 



199 



42-5-60 



PENAL INSTITUTIONS 



42-5-60 



General Consideration (Cont'd) 

adoption of an appropriate administrative 
rule; state prisoners confined in county pub- 
lic works camps (now county correctional 
institutions) , would be paid from funds avail- 
able to the board as no provision was made 
for payments from county funds. 1968 Op. 
Att'y Gen. No. 68-464. 

Rules Governing Hiring Out Inmates 

1. In General 

Board prescribes conditions of work re- 
quired of prisoners and retains administra- 
tive responsibility, etc., of prisoners. In view 
of the broad language found in subsection 
(e) of this section that prison labor could be 
required in public buildings in any such 
manner as deemed advisable by the Board of 
Offender Rehabilitation (Corrections), it is 
obvious that the legislature intended the 
board to prescribe the conditions of work 
required of the prisoners; and even though 
some of the prisoners are physically re- 
strained for overnight periods in county 
jails, their primary assignment is, nonethe- 
less, to the prison or public work camp (now 
county correctional institution) as deter- 
mined by the commissioner; in turn the 
prison or camp has sole administrative re- 
sponsibility and control of the prisoner even 
though he may be temporarily attached to 
the county jail to perform the required 
repair or maintenance services; such a tem- 
porary attachment is not an assignment 
which contravenes the language of subsec- 
tion (b) of § 42-5-50. 1963-65 Op. Att'y Gen. 
p. 72. 

Use of prison labor for governmental 
functions. — Prison labor may be used only 
in connection with those services and func- 
tions of municipalities which are deemed 
"governmental" in nature as opposed to 
"ministerial" functions which are those per- 
formed by municipalities for profit. 1963-65 
Op. Att'y Gen. p. 632. 

"Hiring" defined. — An indispensable 
element of "hiring" is the rendering of 
services for compensation or something in 
return — a quid pro quo. 1960-61 Op. Att'y 
Gen. p. 349. 

Permissible use of prisoners. — This sec- 
tion includes no prohibition to the use of 
prisoners on road projects where federal 



funds are involved. 1965-66 Op. Att'y Gen. 
No. 65-52. 

And prohibited use of prisoners. — Pris- 
oners in the Georgia penal system may not 
be leased to the United States Forest Service, 
which is an agency of the United States 
government. 1967 Op. Att'y Gen. No. 
67-451. 

2. Public Works 

Public work defined. — The courts will 
hold a public work to be any project upon 
which public funds could be lawfully ex- 
pended; the underlying factual issue will 
always be the extent, if any, to which the 
public will receive common or corporate 
benefit. 1969 Op. Att'y Gen. No. 69-470. 

Granting of an "easement" must not be 
taken as conclusively establishing the public 
nature of a works project. 1969 Op. Att'y 
Gen. No. 69-470. 

Permissible works for use of inmates. — It 
is legally permissible to use inmates of the 
prison system for daily civic labor in and 
about a municipality in exchange for the use 
by the Board of Offender Rehabilitation 
(Corrections) of an existing prison facility 
owned by the municipality. 1963-65 Op. Att'y 
Gen. p. 632. 

Presentment of educational programs to 
civic clubs. — Inmates in the Georgia prison 
system may, at the discretion of appropriate 
prison officials, present educational pro- 
grams to civic clubs, even though the presen- 
tation may be in a privately owned facility. 
1969 Op. Att'y Gen. No. 69-221. 

Erection of hospitals. — Convict labor 
may be used, under control of county au- 
thorities, in erection of hospital by the 
county hospital authority. 1945-47 Op. Att'y 
Gen. p. 422 (decided under former Code 
1933, § 77-325 prior to revision by Ga. L. 
1956, p. 161, § 22). 

Building or repairing schools. — A county 
may permit use of convicts in building or 
repairing a public school building in a mu- 
nicipality if the convicts remain under the 
control and management of the county au- 
thorities. 1945-47 Op. Att'y Gen. p. 423. 

Prison labor may be utilized to construct 
roads on land owned by the state. 1969 Op. 
Att'y Gen. No. 69-5. 

Felony convicts may be used in the main- 
tenance of roads in the state-aid system. 
1945-46 Op. Att'y Gen. p. 424. 



200 



42-5-60 



STATE/COUNTY CORRECTIONAL INSTITUTIONS 



42-5-60 



Inmates may be required to perform labor 
upon prison property, including the prepa- 
ration of mobile home sites, if that is what is 
desired of their labors. 1969 Op. Att'y Gen. 
No. 69-418. 

Farming. — Board of Corrections may 
enter into an agreement with a county 
whereby the county gives the prison a crop 
allotment and allows the prison to farm 
county property, furnishing the fertilizer 
and equipment for gathering the crop and 
in return for which, the county is to receive 
a portion of the crop grown on the property, 
with the remainder to be consumed within 
the prison branch. 1970 Op. Att'y Gen. No. 
70-83. 

Use of convict labor on private property is 
permissible where the sole benefit flows to 
the state, and it is the duty of the Board of 
Offender Rehabilitation (Corrections) to ex- 
amine each set of facts and determine 
whether the state is benefiting in the neces- 
sary degree. 1965-66 Op. Att'v Gen. No. 
66-119. 

3. Private Endeavors 

Use of convict labor on private property is 
permissible where the sole benefit flows to 
the state. 1969 Op. Atty Gen. No. 69-158. 

Removal and resetting of fences. — The 

Highway Department (now Department of 
Transportation), can contract with private 
property owner to use prison labor or state 
maintenance forces to remove and reset 
fences upon private property which is to be 
used as right of way since the utilization of 
prison labor is to the benefit of the state; the 
department cannot guarantee to a county 
that it will perform these acts or expend this 
money if a county in turn entered into such 
an agreement with the private landowner 
which guaranteed to the private landowner 
that the state would perform such acts. 1969 
Op. Att'y Gen. No. 69-158. 

Removal of buildings. — This section 
would not prohibit use of prison labor to 
remove a building from private property and 
to reerect the same on state property where 
the sole benefit would flow to the state. 
1958-59 Op. Att'y Gen. p. 250. 

Clearing land. — City not prohibited from 
using prison labor to clear private land un- 
der local health ordinance, so long as trans- 
action is for good faith public purpose, 
rather than a subterfuge designed to benefit 



the private owner. 1958-59 Op. Att'v Gen. p. 
248. 

An agreement between warden of prison 
branch and private landowner, whereby in 
consideration of warden's clearing five acres 
of land belonging to landowner, he will 
permit prison branch to occupy land rent 
free for period of three years, is not illegal, 
so long as it was entered into in good faith, 
for the purpose of procuring the use of land 
for the state, rather than as a guise whereby 
the private landowner is enabled to receive a 
gratuity from the state, prohibited by Ga. 
Const. 1976, Art. HI, Sec. VIII, Para. XII (see 
Ga. Const. 1983, Art. Ill, Sec. VI, Para. VI). 
1958-59 Op. Att'y Gen. p. 248. 

Soil conservation projects. — It is legal to 
utilize convict labor to remove buildings on 
private land in connection with soil conser- 
vation projects being conducted by soil con- 
servation district supervisors, for the pur- 
pose of constructing water impounding 
structures and flooding pools, since soil con- 
servation districts are expressly declared to 
be agencies of the state government by 
§§ 2-6-22 and 2-6-33, whose powers and du- 
ties include the erection of soil conservation 
structures. 1958-59 Op. Att'y Gen. p. 250. 

Use of inmate labor to position and level a 
correctional officer's mobile home site on 
prison property is not a violation of Ga. 
Const. 1976, Art. Ill, Sec. VIII, Para. XII (see 
Ga. Const. 1983, Art. Ill, Sec. VI, Para. VI). 
1969 Op. Att'y Gen. No. 69-418. 

Convict labor may be used for construc- 
tion of school gymnasium though private 
contractor constructing where there are no 
disbursements or credits for use of such 
labor between board of education and con- 
tractors. 1962 Op. Att'y Gen. p. 379. 

Corporation within prohibited category. 
— Although a corporation is imbued with a 
community purpose and no profit is contem- 
plated by the stockholders, it is nevertheless 
clearly within the prohibited category of 
private persons or corporation. 1963-65 Op. 
Att'y Gen. p. 317. 

Prison labor could not be used in home 
for aged and infirm to be constructed by 
county and operated by charitable organiza- 
tion, where control and management of 
home would be in hands of directors of 
organization; any arrangement whereby the 
custody, control, and labor of prisoners are 
vested in private parties would be illegal, and 



201 



42-5-60 



PENAL INSTITUTIONS 



42-5-60 



Rules Governing Hiring Out 
Inmates (Cont'd) 

the prisoners would be entitled to relief by 
habeas corpus. 1958-59 Op. Att'y Gen. p. 
246. 

Manufacture of tags for private sale. — 
The Board of Offender Rehabilitation (Cor- 
rections) is prohibited from manufacturing 
tags in the penal institutions of this state for 
private sale to any person, including charita- 
ble organizations such as the Veterans of 
Foreign Wars. 1952-53 Op. Att'y Gen. p. 400. 

Using prisoners for work on private high- 
ways. — Counties may not use prison labor 
to repair and maintain private driveways 
which have not been validly dedicated to 
public use. 1963-65 Op. Att'y Gen. p. 426. 

Work on private vehicles. — It is not 
permissible for inmates of a training and 
development center for state prisoners to 
perform work on private vehicles to obtain 
practice in carrying out procedures learned 
in the automobile school. 1967 Op. Att'y 
Gen. No. 67-452. 

Sale of Inmates' Products 

1. In General 

Manufacturing operations conducted by 
Board of Corrections. — This section is 
applicable to manufacturing operations con- 
ducted by a prison operated by the Board of 
Corrections other than those manufacturing 
activities which are carried on by the Geor- 
gia Prison Industries Administration (now 
Georgia Correctional Industries Administra- 
tion). 1968 Op. Att'y Gen. No. 68-126. 

Use of inmates in civilian business. — The 
real thrust of this prohibition is against 
actual use of inmates in a civilian business. 
1972 Op. Att'y Gen. No. 72-96. 

Canned and packed vegetables distin- 
guished. — Canned vegetables are "goods, 
wares, or merchandise", and packed vegeta- 
bles are considered "manufactured" or 
"produced". 1965-66 Op. Att'y Gen. No. 
65-28. 

"Goods, wares, or merchandise" con- 
strued. — The phrase "goods, wares, or 
merchandise," as set out in subsection (b) of 
this section, should be construed in its ordi- 
nary sense; this means such chattels as are 
ordinarily the subject of traffic and trade. 
1972 Op. Att'y Gen. No. 72-96. 



The board is authorized to sell to a munic- 
ipality goods, wares, or merchandise manu- 
factured, produced, or mined, wholly or in 
part, by ■convicts or prisoners. 1954-56 Op. 
Att'y Gen. p. 530. 

Hospital authorities may purchase goods 
manufactured by the Georgia Correctional 
Industries Administration. 1970 Op. Att'y 
Gen. No. 70-88. 

2. Within State 

Selling products produced by prison labor 
to other departments. — The Board of Of- 
fender Rehabilitation (Corrections) is au- 
thorized to sell to other departments of the 
state government any products produced by 
prison labor in a program of occupational 
and vocational training. 1948-49 Op. Att'y 
Gen. p. 286. 

Solicitation of paid advertisement in in- 
mate publication. — The restrictions on the 
sale of goods produced by inmates do not 
prohibit the solicitation and acceptance of 
paid advertising in an inmate publication. 
1972 Op. Att'y Gen. No. 72-96. 

3. Outside of State 

Sale of goods outside state. — Although 
this section does not prohibit the sale of 
goods, wares, or merchandise manufactured 
by inmates to firms or corporations outside 
the state, the words "no goods shall be sold 
in this state" indicate that no sale can be 
perfected. 1965-66 Op. Att'y Gen. No. 
66-237. 

Goods packed out of state. — Subsections 
(b) and (d) of this section do not relate to 
goods which have been packed outside of 
this state by prison labor of another state. 
1965-66 Op. Att'y Gen. No. 65-28. 

Sales to factories for the blind. — The 
Georgia Correctional Industries Administra- 
tion may be authorized to sell prisoner-made 
products to factories for the blind located in 
other states, providing the local state law 
does not prohibit the sale of 
prisoner-manufactured goods. 1974 Op. 
Att'y Gen. No. 74-157. 

Sales to government contractors. — There 
are no prohibitions in existence under stat- 
utes of this state restricting sales of products 
manufactured or produced by the Georgia 
Prison Industries Administration (now Geor- 
gia Correctional Industries Administration) 



202 



42-5-60.1 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-61 

to government contractors outside the state. prohibition is to be construed as to the 

1967 Op. Att'y Gen. No. 67-349. extent of the legislature's sanctions on sales 

Sales made outside state excluded. — Due of prison made or produced products and, 

to the fact that subsection (b) of this section therefore, that any sales made beyond the 

prohibits only sales within the state to private state are excluded from these prohibitions, 

persons, firms, associations, or corporations 1967 Op. Att'y Gen. No. 67-349. 
it is to be concluded that this expressed 

RESEARCH REFERENCES 

Am. Jut. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, §§ 162-172. 
C.J.S. — 18 C.J.S., Convicts, §§ 13-20. 

42-5-60.1. Utilization of inmates of county correctional institutions for 
work on outdoor assignments during inclement weather; super- 
vision of inmates. 

(a) As used in this Code section, the term "inclement weather" means 
weather in which there is rain or in which the temperature is below 28 
degrees Fahrenheit. 

(b) Inmates of a county correctional institution who are otherwise 
required to work on outdoor assignments shall work on such assignments 
notwithstanding inclement weather if employees of any governmental entity 
within the county in which the work is to be performed are performing 
outdoor work during such inclement weather and such work is similar in 
kind or in degree of exertion to that to be performed by the inmates. 

(c) Correctional officers and other supervisory personnel shall be avail- 
able to supervise adequately those inmates performing outdoor work in 
inclement weather. (Ga. L. 1981, p. 1421, § 1.) 

42-5-61. Services and benefits to be furnished inmates discharged by 
department or county correctional institutions. 

(a) Except as otherwise provided in this Code section, whenever an 
inmate is discharged upon pardon or completion of his sentence or is 
conditionally released or paroled from any place of detention to which he 
has been assigned under the authority of the department, the department 
shall provide the inmate the following: 

(1) Transportation to the inmate's home within the United States or to 
a place chosen by the inmate and authorized by regulations of the board; 

(2) An amount of money of not less than $25.00 and not more than 
$150.00, as determined according to regulations of the board; and 

(3) A travel kit, when appropriate, and suitable clothing, each as 
provided by regulation of the board. 

(b) Whenever an inmate assigned to a county correctional institution by 
the department is discharged upon pardon or completion of his sentence 

203 



42-5-61 



PENAL INSTITUTIONS 



42-5-61 



or is conditionally released or paroled, the county shall provide the inmate 
the release benefits to which he is eligible under this Code section, and the 
department shall reimburse the county. 

(c) An inmate whose limits of confinement have been extended to allow 
him to participate in a work-release program of paid employment shall 
receive the benefits provided by this Code section only to the extent of 
financial need, as determined pursuant to regulations of the board. 

(d) An inmate convicted of an offense which is less than a felony shall 
receive the amount of $25.00 or less as determined under regulations of the 
board and transportation as provided in this Code section. 

(e) The department shall administer these benefits through regulations 
which are based upon the knowledge and skill of the board in aiding an 
inmate to make the initial adjustment to his release. (Ga. L. 1956, p. 161, 
§ 21; Ga. L. 1969, p. 600, § 1; Ga. L. 1972, p. 602, § 1; Ga. L. 1973, p. 542, 
§ I.) 

OPINIONS OF THE ATTORNEY GENERAL 



Legislative intent. — This statute was in- 
tended to alleviate hardships which prison- 
ers encounter on reentry into free society; 
this policy would apply to a second release as 
well as a first, especially the inmate who was 
unsuccessful in his first attempt to make the 
social adjustment to freedom. 1972 Op. Att'y 
Gen. No. 72-102. 

Issuance of suitable clothing to inmates 
released. — This section permits the Board 
of Offender Rehabilitation (Corrections) to 
issue either work clothes or a business suit to 
inmates who are discharged, paroled, or 
conditionally released. 1972 Op. Att'y Gen. 
No. 72-160. 

Second release inmates entitled to bene- 
fits. — An inmate who has been paroled, 
conditionally released, or released on proba- 
tion, and upon his release has been given 
benefits pursuant to this section, and who 
has been returned to prison for violation of 
the conditions of his release, is again entitled 
to receive benefits under this statute upon 
the completion of his sentence, provided he 
is otherwise qualified. 1972 Op. Att'y Gen. 
No. 72-102. 

Prisoner released upon payment of fine 
may fall within the category of prisoner 
"discharged upon completion of sentence" 
or within the category of a "conditionally 
released" prisoner, depending upon the par- 



ticular order entered to effectuate the re- 
lease; prisoners discharged in these catego- 
ries with reference to discharge by payment 
of a fine are entided to the benefits provided 
by this section. 1969 Op. Att'y Gen. No. 
69-245. 

Other released inmates entitled to bene- 
fits. — Inmates being released from county 
jails who were committed to the director of 
corrections (now commissioner of correc- 
tions) and who have had files prepared for 
them by the Georgia Diagnostic and Classi- 
fication Center, but who have not been 
picked up by the center, are entided to the 
gratuities provided in this section. 1975 Op. 
Att'y Gen. No. 75-93. 

A prisoner who is released "by reason of 
remission to probation" is entitled to the 
benefits provided for in this section. 1969 
Op. Att'y Gen. No. 69-245. 

A prisoner who is discharged by an order 
of "remission to present service" is entided 
to the benefits provided for by this section. 
1969 Op. Att'y Gen. No. 69-245. 

A prisoner released to a detainer is not 
entitled to benefits provided by this section; 
it is not contemplated that the state prison 
uniform will be taken away from a prisoner 
released under this category. 1969 Op. Att'y 
Gen. No. 69-245. 



204 



42-5-62 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-63 

RESEARCH REFERENCES 

CJ.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, § 155. 

42-5-62. Forfeiture of contraband. 

The possession by an inmate on his person or in his cell, immediate 
sleeping area, locker, or immediate place of work or assignment of any form 
of securities, bonds, coins, currency, or legal tender, unless expressly and 
specifically authorized by the individual institution concerned, shall consti- 
tute contraband and be subject to forfeiture. With respect to state correc- 
tional institutions, all such securities, bonds, coins, currency, or legal tender 
shall vest in the state and shall be paid into the state treasury. With respect 
to county correctional institutions, all such currency and other items shall 
vest in the county and shall be paid into the county treasury. (Ga. L. 1980, 
p. 1095, § 1.) 

RESEARCH REFERENCES 

Am. Jut. 2d. — 60 Am. Jur. 2d, Penal and CJ.S. — 72 CJ.S., Prisons and Rights of 
Correctional Institutions, § 106. Prisoners, §§ 61, 75. 

42-5-63. Unauthorized possession of weapon by inmate. 

(a) Every person confined in a penal institution or confined in any other 
facility under the jurisdiction of or subject to the authority of the board or 
who, while being conveyed to or from any facility, or while at any other 
location under such jurisdiction or authority, or while being conveyed to or 
from any such place, or while under the custody of officials, officers, or 
employees subject to such jurisdiction or authority, who, without authori- 
zation of the appropriate authorities, possesses or carries upon his person 
or has under his custody or control any instrument or weapon of the kind 
commonly known as a blackjack, slingshot, billy, sandclub, sandbag, or 
metal knuckles; or any pistol, revolver, or other firearm; or any explosive 
substance; or any dirk, dagger, switchblade, gravity knife, razor, or any other 
sharp instrument which is capable of such use as may endanger the safety 
or security of any of the facilities described in this subsection or of any 
person therein shall be guilty of a felony and, upon conviction thereof, shall 
be punished by imprisonment for a term of not less than one nor more than 
five years. 

(b) A person is deemed "confined in a penal institution" if he is 
confined in any of the penal institutions specified in subsection (a) of this 
Code section by order made pursuant to law, regardless of the purpose of 
the confinement and regardless of the validity of the order directing the 
confinement, until a judgment of a competent court setting aside the order 
becomes final so as to entitle the person to his immediate release. 

205 



42-5-63 



PENAL INSTITUTIONS 



42-5-63 



(c) A person is deemed "confined in" a penal institution even if, at the 
time of the offense, he is temporarily outside its walls or bounds for the 
purpose of confinement in a local place of confinement pending trial or for 
any other purpose for which an inmate may be allowed temporarily outside 
the walls or bounds of a penal institution; but an inmate who has been 
released on parole is not deemed "confined in" a penal institution for 
purposes of this Code section. (Ga. L. 1973, p. 555, § 1; Ga. L. 1989, p. 14, 
§ 42.) 



Cross references. — Penalty for posses- 
sion of firearms by convicted felons, 
§ 16-11-131. 



JUDICIAL DECISIONS 



Constitutionality. — This section which 
prohibits prison inmates from having deadly 
weapons does not violate the equal protec- 
tion clause of U.S. Const., Amend. 14. Ridley 
v. State, 232 Ga. 646, 208 S.E.2d 466 (1974). 

This section is not unconstitutionally 
vague or indefinite, and is consistent with 
due process requirements of both state and 
federal Constitutions, and is reasonable and 
necessary for the security and protection of 
correctional institutions and the people who 
reside and work in such institutions. Ridley v. 
State, 232 Ga. 646, 208 S.E.2d 466 (1974). 

Making out a prima facie case. — On 
indictment under this section, proof that the 
defendant, a convict, was searched while 
passing from one building to another, and a 
knife meeting the description of this section 
was found on his person, makes out a prima 
facie case. If the defendant claims autho- 
rized possession, the burden is on him to 
offer evidence to that effect. Days v. State, 
134 Ga. App. 585, 215 S.E.2d 520 (1975). 

Subsection (b) of this section does not 
make production of an order an essential 
element of the crime which must be admit- 



ted into evidence at trial. Lehman v. State, 
174 Ga. App. 767, 332 S.E.2d 17 (1985). 

Offense not lesser included offense of 
aggravated assault. — Offense of unautho- 
rized possession of weapon by inmate is not 
a lesser included offense of aggravated as- 
sault. Weaver v. State, 176 Ga. App. 639, 337 
S.E.2d420 (1985). 

Fact that weapon was found in defendant's 
locker, which was locked, with defendant 
having the only key save a master key used by 
prison officials, was sufficient evidence to 
establish that he had exclusive custody and 
control of the weapon. Black v. State, 179 Ga. 
App. 170, 345 S.E.2d 678 (1986). 

Evidence was sufficient to sustain convic- 
tion. — See Hood v. State, 192 Ga. App. 150, 
384 S.E.2d 242 (1989); Dixon v. State, 192 
Ga. App. 845, 386 S.E.2d 719 (1989). 

Cited in Chaney v. State, 139 Ga. App. 211, 
228 S.E.2d 199 (1976); Mathis v. State, 139 
Ga. App. 322, 228 S.E.2d 358 (1976); Austin 
v. State, 146 Ga. App. 236, 246 S.E.2d 143 
(1978); Raven v. State, 168 Ga. App. 398, 309 
S.E.2d 656 (1983); Slater v. State, 185 Ga. 
App. 889, 366 S.E.2d 240 (1988). 



RESEARCH REFERENCES 



C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, §§ 61,62, 75. 

ALR. — Cane as a deadly weapon, 30 ALR 
815. 

Sufficiency of evidence of possession in 



prosecution under state statute prohibiting 
persons under indictment for, or convicted 
of, crime from acquiring, having, carrying, 
or using firearms or weapons, 43 ALR4th 

788. 



206 



42-5-64 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-64 

42-5-64. (For effective date, see note) Educational programming. 

(a) The commissioner shall maintain an educational program within the 
state prison system to assist inmates in achieving at least a fifth-grade level 
on standardized reading tests. Inmates who test below the fifth-grade level 
will be encouraged by institutional staff to attend appropriate classes until 
they attain this level. 

(b) For the purposes of this Code section, educational programming 
shall not apply to inmates who: 

(1) Have been sentenced to death; 

(2) Have attained 50 years of age; or 

(3) Have serious learning disabilities. 

(c) The commissioner shall provide additional educational programs in 
which inmates can voluntarily participate to further their education beyond 
the fifth-grade level. 

(d) The commissioner shall utilize available services and programs 
within the Department of Education, and the Department of Education 
shall cooperate with the commissioner in the establishment of educational 
programs and the testing of inmates as required in this Code section. 

(e) The commissioner shall be authorized to promulgate rules and 
regulations necessary to carry out the provisions of this Code section. (Code 
1981, § 42-5-64, enacted by Ga. L. 1986, p. 1596, § 2; Ga. L. 1992, p. 3219, 

§ U 

Delayed effective date. — Ga. L. 1992, p. Code Commission notes. — Pursuant to 
3219, § 2, provides: "This Act shall become Code Section 28-9-5, in 1986, "program- 
effective only when funds are specifically ming" was substituted for "programing" in 
appropriated for purposes of this Act in an subsection (b). 

appropriations Act making specific refer- Pursuant to Code Section 28-9-5, in 1992, 

ence to this Act. This Act shall apply to those m subsection (a) as amended by Ga. L. 1992, 

inmates sentenced to the Department of p. 3219, § 1, "Paroles" was substituted for 

Corrections after its effective date." No such "Parole" in the fourth sentence of subsec- 

funds were appropriated by the General ^ on ( a ) 
Assembly at the 1992, 1993, 1994, 1995, 
1996, or 1997 sessions. 

RESEARCH REFERENCES 

Am. Jut. 2d. — 60 Am. Jur. 2d, Penal and C.J.S. — 72 C.J.S., Prisons and Rights of 

Correctional Institutions, § 100. Prisoners, § 59. 



207 



42-5-80 PENAL INSTITUTIONS 42-5-82 

ARTICLE 4 

GRANTING SPECIAL LEAVES, EMERGENCY LEAVES, AND LIMITED 

LEAVE PRIVILEGES 

42-5-80. Authorization and general procedure for granting special leave. 

Whenever recommended by the warden or superintendent of any penal 
institution in which inmates committed to the custody of the commissioner 
have been assigned, the commissioner may grant special leave to an inmate 
to leave the institution in which he is incarcerated for participation in 
special community or other meritorious programs or activities deemed 
beneficial to the inmate and not detrimental to the public. The activity must 
be such as, in the opinion of the warden or superintendent and the 
commissioner, will contribute to the rehabilitation process of the inmate 
involved. In order to be considered for this special leave, the inmate shall be 
eligible solely upon the concurrence of the warden or superintendent and 
the commissioner that positive attitudinal and growth patterns are being 
established. Under no condition shall any inmate be permitted to leave the 
state under this Code section. This Code section shall not apply to convicted 
sex offenders. (Ga. L. 1971, p. 342, §§ 1, 2; Ga. L. 1972, p. 579, §§ 1, 2; Ga. 
L. 1975, p. 898, § 1.) 

Administrative rules and regulations. — Georgia Board of Offender Rehabilitation, 
Special leave, Official Compilation of Rules Chapter 41 5-2-4-. 16. 
and Regulations of State of Georgia, Rules of 

42-5-81. Issuance of special leave; filing. 

All special leaves must be issued in writing, must set a determinate period 
of duration, and must be signed by both the warden or superintendent and 
by the commissioner; this authority may not be delegated except as 
provided in Code Section 42-5-84. All such writings must be kept on file in 
the office of the commissioner. (Ga. L. 1971, p. 342, § 2; Ga. L. 1972, p. 579, 
§ 2.) 

42-5-82. Purposes for which special leave may be granted. 

A special leave may be granted for the purpose of: 

(1) Attending educational programs; 

(2) Improving job skills; 

(3) Attending trade licensing examinations; 

(4) Being interviewed for employment; 

(5) Participating in drug abuse, delinquency, or crime prevention 
programs; 

208 



42-5-83 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-85 

(6) Participating as a volunteer for a nonprofit organization or 
governmental agency in an activity serving the general public; or 

(7) For any purpose which the department deems beneficial to both 
the inmate and the public. (Ga. L. 1971, p. 342, § 3; Ga. L. 1972, p. 579, 

§ 3.) 

42-5-83. Emergency leaves. 

The warden or superintendent of any penal institution in which inmates 
committed to the custody of the commissioner have been assigned may 
authorize, without the prior written approval of the commissioner, emer- 
gency leave to an inmate when it is confirmed that there exists a serious 
illness or death in the inmate's immediate family and when notice and 
confirmation of the illness or death does not reach the warden or 
superintendent in time to authorize special leave in the manner provided in 
Code Section 42-5-81. Emergency leave cannot be granted under this Code 
section to any inmate who has been convicted of a sex offense, who has 
escaped or attempted to escape within 12 months preceding the emergency, 
who has not served sufficient time to demonstrate his responsibility and 
dependability, or who has an assaultive pattern determined to exist either 
from the nature of the offense for which he has been convicted or from 
conduct while incarcerated in the penal institution. The warden or super- 
intendent granting the emergency leave must forward immediately a 
written report of the action to the commissioner. (Ga. L. 1975, p. 898, § 2.) 

42-5-84. Delegation of authority to issue limited leave privileges; records. 

The commissioner may delegate to any warden or superintendent of any 
penal institution in which inmates committed to his custody have been 
assigned the authority to issue limited privileges to leave the confines of the 
institution, not to exceed 12 hours and not to extend beyond daylight 
hours, to any inmate for whom the commissioner has extended, under the 
authority of Code Section 42-5-59, the limits of the inmate's place of 
confinement. The limited privileges authorized in this Code section may 
only be granted to accomplish the purposes enumerated in Code Section 
42-5-82. The warden or superintendent granting privileges under this Code 
section must maintain detailed records of passes authorized by this Code 
section. (Ga. L. 1975, p. 910, § 1.) 

42-5-85. Leave privileges of inmates serving murder sentences. 

(a) As used in this Code section only, the term "aggravating circum- 
stance" means that: 

(1) The murder was committed by a person with a prior record of 
conviction for a capital felony; 

209 



42-5-85 PENAL INSTITUTIONS 42-5-85 

(2) The murder was committed while the offender was engaged in the 
commission of another capital felony, aggravated battery, burglary, or 
arson in the first degree; 

(3) The offender, by his act of murder, knowingly created a great risk 
of death to more than one person in a public place by means of a weapon 
or device which would normally be hazardous to the lives of more than 
one person; 

(4) The offender committed the murder for himself or another, for 
the purpose of receiving money or any other thing of monetary value; 

(5) The murder of a judicial officer, former judicial officer, district 
attorney or solicitor-general, or former district attorney, solicitor, or 
solicitor-general was committed during or because of the exercise of his 
or her official duties; 

(6) The offender caused or directed another to commit murder or 
committed murder as an agent or employee of another person; 

(7) The murder was outrageously or wantonly vile, horrible, or 
inhuman in that it involved torture, depravity of mind, or an aggravated 
battery to the victim; 

(8) The murder was committed against any peace officer, corrections 
employee, or fireman while engaged in the performance of his official 
duties; 

(9) The murder was committed by a person in, or who has escaped 
from, the lawful custody of a peace officer or place of lawful confinement; 
or 

(10) The murder was committed for the purpose of avoiding, inter- 
fering with, or preventing a lawful arrest or custody in a place of lawful 
confinement of himself or another. 

(b) No special leave, emergency leave, or limited leave privileges shall be 
granted to any inmate who is serving a murder sentence unless the 
commissioner has approved in writing a written finding by the department 
that the murder did not involve any aggravating circumstance. 

(c) The department shall make a finding that a murder did not involve 
an aggravating circumstance only after an independent review of the record 
of the trial resulting in the conviction or of the facts upon which the 
conviction was based. (Code 1981, § 42-5-85, enacted by Ga. L. 1983, p. 
1806, § 2; Ga. L. 1984, p. 22, § 42; Ga. L. 1996, p. 748, § 22.) 

The 1996 amendment, effective July 1, solicitor, or solicitor-general" for "or solici- 

1996, in paragraph (5) of subsection (a), tor" and inserted "or her" near the end. 

substituted "solicitor-general" for "solid- Editor's notes. — Ga. L. 1996, p. 748, 

tor" preceding ", or former", substituted ", § 27, not codified by the General Assembly, 

210 



42-5-100 STATE/COUNTY CORRECTIONAL INSTITUTIONS 42-5-100 

provides: "Notwithstanding any other provi- the General Assembly, provides: "Except as 

sion of law, an Act approved February 11, otherwise authorized in this Act, on and 

1854 (Ga. L. 1854, p. 281), which abolished after July 1, 1996, any reference in general 

the office of solicitor of the City Court of law or in any local Act to the solicitor of a 

Savannah, now the State Court of Chatham state court shall mean and shall be deemed 

County, and transferred responsibility for to mean the solicitor-general of such state 

the prosecution of criminal cases in said court." 

court to the solicitor general (now the dis- Ga. L. 1996, p. 748, § 30, not codified by 

tnct attorney) for the Eastern Judicial Cir- the General Assembly, provides: "The provi- 

cuit is confirmed. It shall be the duty of said sions of paragraph (3) of Code Section 

district attorney to prosecute all criminal 15-18-62, relating to the qualifications for 

actions in said state court until otherwise the office of solicitor-general of a state court 

specifically provided by law." shall apply to any person elected or ap^ 

Ga. L. 1996, p. 748, § 28, not codified by pointed to such office after July 1, 1996. Any 

the General Assembly, provides: "The provi- person holding such office on July 1, 1996, 

sions of this Act shall not affect the powers, may continue to hold such office for the 

duties, or responsibilities of the district attor- remainder of the term to which such person 

ney as successor to the office of solicitor was elected or appointed notwithstanding 

general under the constitution, statutes, and the fact that such person has not been a 

common law of this state as provided by member of the State Bar of Georgia for 

Code Section 15-18-1." three years if such person is otherwise qual- 

Ga. L. 1996, p. 748, § 29, not codified by ified to hold the office of solicitor-general." 

ARTICLE 5 
AWARDING EARNED-TIME ALLOWANCES 

42-5-100. Termination of board's power to award earned-time allowances. 

The earned-time allowances, which could have been awarded by the 
board to inmates based upon the performance of the inmate, in effect on 
December 31, 1983, shall not apply to: 

(1) Those persons who commit crimes on or after January 1, 1984, and 
who are subsequently convicted and sentenced to the custody of the 
board; 

(2) Those persons who have committed a crime prior to January 1, 
1984, but who have not been convicted and sentenced as of December 31, 
1983, and who are subsequently sentenced to the custody of the board, 
including those whose sentences have been probated or suspended, on or 
after January 1, 1984; however, such persons shall receive the full benefit 
of the earned-time allowances, in effect on December 31, 1983, and shall 
receive a release or discharge date computed as if they had been 
sentenced to the custody of the board, prior to December 31, 1983; or 

(3) Those persons previously sentenced to the custody of the board, 
including those whose sentences have been probated or suspended, as of 
December 31, 1983; however, such persons shall receive the full benefit of 
the earned-time allowances in effect on December 31, 1983, and shall 
receive a release or discharge date the same as reflected in the records of 
such person on December 31, 1983, less any creditable earned time that 

211 



42-5-100 



PENAL INSTITUTIONS 



42-5-100 



such person could have earned as a result of forfeited earned time. (Code 
1981, § 42-5-100, enacted by Ga. L. 1983, p. 1340, § 2; Ga. L. 1984, p. 22, 

§ 42.) 



Cross references. — Earned time allow- 
ance for persons sentenced for a misde- 
meanor of a high and aggravated nature, 
§ 17-10-4. 

Editor's notes. — Ga. L. 1983, p. 1340, 
§2, effective January 1, 1984, deleted the 
prior version of this Code section, which 
enumerated the powers of the board regard- 
ing granting of earned-time allowances, and 



enacted the present language. The prior 
Code section was based on Ga. L. 1976, p. 
949, § 2; Ga. L. 1978, p. 985, §§ 2-4; and Ga. 
L. 1980, p. 2002, § 1. 

Law reviews. — For note, "Behind Closed 
Doors: An Empirical Inquiry Into the Nature 
of Prison Discipline in Georgia," see 8 Ga. L. 
Rev. 919 (1974). 



JUDICIAL DECISIONS 



Analysis 



Decisions Prior to 1983 Amendment 
Decisions Under Prior Law 



Decisions Prior to 1983 Amendment 

Where an inmate's good-time is forfeited, 

the following constitutionally minimum pro- 
cedures are required: (1) a hearing; (2) 
written notice of the charges served at least 
24 hours in advance of the hearing; and (3) 
a written report of the hearing setting out 
the reasons for the action taken and the 
evidence relied on. The prisoner may be 
permitted to call witnesses and present evi- 
dence consistent with the needs of the insti- 
tution. There is no constitutional right to 
confrontation, cross-examination, or coun- 
sel. Story v, Ault, 238 Ga. 69, 230 S.E.2d 875 
(1976). 

Where disciplinary actions are taken 
against a prisoner, the Constitution requires 
only that the hearing be held before final 
disciplinary action is taken and final forfei- 
ture occurs. Story v. Ault, 238 Ga. 69, 230 
S.E.2d875 (1976). 

Section as to punishment for aggravated 
misdemeanors not repealed. — This section 
and § 42-5-101 (now repealed) did not re- 
peal by implication § 17-10-4 (relating to 
punishment for misdemeanors of a high and 
aggravated nature). Sutton v. Garmon, 245 
Ga. 685, 266 S.E.2d 497 (1980). 

Jurisdiction of court over good-time allow- 
ances. — A sentence of confinement for a 
period of two years is fully served at the time 
the executive department releases the pris- 
oner, and any attempt by a court to impose 
its will over the executive department as to 



what constitutes service of a period of con- 
finement would be a nullity and constitute 
an exercise of power granted exclusively to 
the executive department. Johns v. State, 160 
Ga. App. 535, 287 S.E.2d 617 (1981). 

Applying federal system service toward 
state good-time allowances. — Defendant's 
service under federal system, during which 
time he was serving a four-year probated 
sentence imposed by state superior court, 
did not enable him to earn statutory 
good-time and extra good-time allowances 
toward his probated state sentence. Wellons 
v. State, 164 Ga. App. 100, 296 S.E.2d 397 
(1982). 

Trial for offense of escape. — Even 
though a prisoner is not tried for the statu- 
tory offense of escape in the courts, he may 
be found guilty by the Department of Cor- 
rections. Story v. Ault, 238 Ga. 69, 230 S.E.2d 
875 (1976). 

Cited in Balkcom v. Heptinstall, 152 Ga. 
App. 539, 263 S.E.2d 275 (1979). 

Decisions Under Prior Law 

Editor's notes. — In light of the similarity 
of the issues dealt with under the provisions, 
decisions under former Penal Code 1910, 
§ 1221 and under Ga. L. 1956, p. 161, as it 
read prior to revision by Ga. L. 1976, p. 949, 
§ 1 are included in the annotations for this 
Code section. 

Two sentences served concurrently. — 
Where a person was convicted of two felo- 
nies, and served his sentences concurrently, 



212 



42-5-100 



STATE/COUNTY CORRECTIONAL INSTITUTIONS 



42-5-100 



so that he was entitled to be released upon 
termination of the longer sentence, he 
could not have such term reduced on ac- 
count of good conduct by calculating an 
allowance for good conduct on each of the 
two sentences, and deducting the aggregate 
time from the longer sentence. 
Chattahoochee Brick Co. v. Goings, 135 Ga. 
529, 69 S.E. 865, 1912A Ann. Cas. 263 
(1910). 

When prisoner entitled to extra good-time 
credit. — One is only entitled to extra good 
time if he is a "deserving and exemplary" 
prisoner, and only then in accordance with 
the rules and regulations of the Board of 
Corrections. Balkcom v. Sellers, 219 Ga. 662, 
135 S.E.2d 414 (1964). 

The granting and taking of good time is an 
administrative action. — The action is upon 
sentences then being served and does not 
relate to the imposition of a sentence after 
conviction. Potts v. State, 134 Ga. App. 512, 
215S.E.2d276 (1975). 

Judicial authority as to amount of 
good-time allowance. — Judge has no au- 
thority to say what good-time or extra 
good-dme allowance a prisoner shall be 
given, as the law vests that authority in the 
Board of Corrections for prisoners under its 
jurisdiction. Grimes v. Stewart, 222 Ga. 713, 
152S.E.2d369 (1966). 

Where an inmate's good time is forfeited 
the following constitutionally minimum pro- 
cedures are required: (1) a hearing; (2) 
written notice of the charges served at least 



24 hours in advance of the hearing; and (3) 
a written report of the hearing setting out 
the reasons for the action taken and the 
evidence relied on. The prisoner may be 
permitted to call witnesses and present evi- 
dence consistent with the needs of the insti- 
tution. There is no constitutional right to 
confrontation, cross-examination, or coun- 
sel. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 
(1976). 

Where disciplinary actions are taken 
against a prisoner, the Constitution requires 
only that the hearing be held before final 
disciplinary action is taken and final forfei- 
ture occurs. Story v. Ault, 238 Ga. 69, 230 
S.E.2d875 (1976). 

Forfeiture of good-time allowance be- 
cause of escape. — Punishment by forfei- 
ture of good-time allowances for escape is 
executive punishment and does not prevent 
prosecution for the same offense in a court 
of law. Mincey v. Hopper, 233 Ga. 378, 211 
S.E.2d283 (1974). 

There is no merit in the contention that 
an appellant's good-time allowance could 
not be forfeited because of his escape with- 
out his trial in a court of law for the crime of 
escape. Mincey v. Hopper, 233 Ga. 378, 211 
S.E.2d283 (1974). 

A probationer is not a prisoner within 
meaning of section and, therefore, one serv- 
ing a sentence on probation is not entitled as 
a matter of law to statutory or extra 
good-time allowances. Balkcom v. Gaulding, 
216 Ga. 410, 116 S.E.2d 545 (1960). 



OPINIONS OF THE ATTORNEY GENERAL 
Analysis 



General Consideration 

Opinions Prior to 1983 Amendment 



General Consideration 

Editor's notes. — In light of the similarity 
of the issues dealt with, opinions under Ga. 
L. 1956, p. 161, as it read prior to revision by 
Qa. L. 1976, p. 949, §§ 1, 2 are included in 
the annotations for this Code section. 

Fundamental public policy underlying sec- 
tion is orderly administration of penitentiary 
service of prisoners, which is enhanced by a 
system of rewards in which the prisoner 
participates through a reduction of time 
served; the state also benefits through a 



lessening of ever constant discipline prob- 
lems. The state receives no benefit by award- 
ing statutory good time to an individual not 
"in any prison or county public works camp 
(now county correctional institution) oper- 
ated under the jurisdiction of the board." 
This section was passed to benefit both the 
state and the prisoner. Since the state is not 
benefited directly when the prisoner is not 
under the jurisdiction of the board, the 
application of the provision dealing with 
statutory good time would be unauthorized. 
1963-65 Op. Att'y Gen. p. 143. 



213 



42-5-100 



PENAL INSTITUTIONS 



42-5-100 



General Consideration (Cont'd) 

Effect on powers of State Board of Par- 
dons and Parole. — This section, which 
terminates the power of the Board of Of- 
fender Rehabilitation (Corrections) to pro- 
vide for earned-time allowances for inmates 
under its supervision or custody, has no 
effect on the powers of the State Board of 
Pardons and Paroles to grant earned time to 
persons serving their sentences on parole or 
other conditional release, and further has 
no effect on the board's authority to with- 
hold or to forfeit, in whole or in part, any 
such earned-time allowances. 1984 Op. Att'y 
Gen. No. 84-7. 

Earned-time credit by one sentenced be- 
fore December 31, 1983 and paroled on 
January 31, 1984. — See 1986 Op. Att'y Gen. 
No. 86-7. 

Opinions Prior to 1983 Amendment 

The legislative intent behind this section is 

to provide for the uniform computation of 
sentences; therefore, an inmate who is held 
by a county, pending the appeal of a felony 
conviction, should benefit from the 
earned-time provisions in the computation 
of his release date. 1978 Op. Att'y Gen. No. 
U78-46. 

Sheriff responsible for calculating sen- 
tences. — As a natural concomitance of the 
duties imposed under §§ 42-4-1, 42-4-4, and 
former subsection (d) of this section, the 
sheriff would be responsible for calculating 
sentences of felony prisoners held in the 
county jail pending appeal, and would be 
the appropriate discharging authority 
should a sentence expire before a prisoner is 
transferred to the custody of state authori- 
ties. 1978 Op. Att'y Gen. No. U78-46. 

Youthful offender may be classified as 
habitual offender. — Inmate sentenced un- 
der Youthful Offender Act (Ch. 7 of this 
title) may also be classified as a habitual 
offender under this section for purposes of 
sentence computation. Further, in the rare 
case where a youthful offender is also classi- 
fied as a habitual offender, earned-time ad- 
justment for habitual offenders should be 
used in computing offender's unconditional 
release date. 1981 Op. Att'y Gen. No. 81-62. 

There are two types of "earned time": 
"parole earned time" granted by the State 
Board of Pardons and Paroles pursuant to its 



rules and regulations, and "incarcerated 
earned time" granted by the Department of 
Offender Rehabilitation (Corrections) pur- 
suant to its rules and regulations. 1980 Op. 
Att'y Gen. No. 80-113. 

Awarding of earned time against probated 
sentence would frustrate intent of sentenc- 
ing judge who has made a previous judicial 
determination under §§ 17-10-1 and 42-8-34 
that the particular individual should be sub- 
ject to a specific period of supervision and 
control while he is being reintegrated into 
society. 1982 Op. Att'y Gen. No. 82-58. 

Felons confined in county jail. — The 
crediting of earned time to misdemeanants 
confined to county correctional facilities un- 
der former subsection (d), applied in the 
situation where a felon was sentenced to 
confinement in a county jail as a condition 
of probation. 1982 Op. Att'y Gen. No. 
U82-47. 

Prerequisite for computation of 
good-time allowances and deductions. — 
With the limited exception of § 42-6-5 relat- 
ing to temporary custody of convicted in- 
mates in county facilities, good-time allow- 
ances and deductions therefrom can only be 
computed when inmates are under the juris- 
diction and control of the institutions oper- 
ated by the Department of Offender Reha- 
bilitation (Corrections); moreover, with the 
limited exception of § 42-6-5, neither sher- 
iffs nor the department can take jail credit 
away from inmates who have misbehaved in 
jails prior to their being sent to correctional 
institutions. 1972 Op. Att'y Gen. No. 72-61. 

Penal systems not operated by board. — 
The Board of Offender Rehabilitation (Cor- 
rections) has authority to adopt a policy 
under which the commissioner may desig- 
nate penal systems other than those oper- 
ated by the board as places of confinement 
for service of state sentences when concur- 
rent sentences are imposed; this practice 
would enable a prisoner to earn all possible 
good time even though not actually serving 
his sentence in a state institution. 1963-65 
Op. Att'y Gen. p. 240. 

Where one has probated sentence to serve 
upon completion of in-prison time, probated 
sentence with its accompanying supervision 
begins upon discharge of inmate from con- 
finement and continues to run through the 
period of time originally prescribed for the 
probated sentence; to allow the inmate to 
begin his probated sentence when he ordi- 
narily would have been discharged from 



214 



42-5-101 



STATE/COUNTY CORRECTIONAL INSTITUTIONS 



42-5-101 



his in-prison sentence without the good-time 
allowances, is to allow the inmate to return 
to society without the benefit and guidance 
of supervision and without the help the 
court needs to become aware of violations by 
the probationer. 1971 Op. Att'y Gen. No. 
71-48. 

Requests for retention of custody of in- 
mate by county probation department. — 
Requests from a county probation depart- 
ment for the retention of custody of an 
inmate pending the arrival of a deputy sher- 
iff or a probation officer must be disre- 
garded by the wardens. 1969 Op. Att'y Gen. 
No. 69-151. 

Prisoners at Central State Hospital. — 
Board of Corrections has the power to pro- 
mulgate rules and regulations as to 
good-time allowances which are applicable 
to prisoners transferred to Central State 
Hospital due to mental illness. 1975 Op. 
Att'y Gen. No. 75-146. 

Time spent by felon incarcerated under 
Department of Human Resources not to be 
considered when computing good-time al- 
lowances; rather, good time should be com- 
puted from the date the felon is received by 
an institution under the Board of Correc- 



tions' jurisdiction. 1975 Op. Att'v Gen. No. 
75-78. 

Because a sentence begins running from 
the time of incarceration under the Depart- 
ment of Human Resources, the prisoner 
must serve one-third of the time to which he 
has been sentenced, including the time he 
has spent in the custody of the Department 
of Human Resources before becoming eligi- 
ble for parole. 1975 Op. Att'y Gen. No. 
75-78. 

Effect of prisoner's acquittal in escape 
trial. — The fact that a prisoner was acquit- 
ted in a trial on a charge of escape has no 
legal effect on the authority of the Board of 
Offender Rehabilitation (Corrections) to 
deduct from prisoner's good-time allowance 
for such an escape. 1967 Op. Att'y Gen. No. 
67-234. 

Means of computing good-time allowance. 
— The word "only" in § 17-10-4 should be 
read as negating any implication that 
good-time allowances for persons sentenced 
under that section should be computed in 
the same manner as for persons convicted of 
ordinary misdemeanors under this section. 
1972 Op. Att'y Gen. No. 72-138. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and 
Correctional Institutions, §§ 222-235. 

C.J.S. — 72 C.J.S., Prisons and Rights of 
Prisoners, §§ 144-153. 



ALR. — Withdrawal, forfeiture, modifica- 
tion, or denial of good-time allowance to 
prisoner, 95 ALR2d 1265. 



42-5-101. Work incentive credits. 

(a) The Department of Corrections is authorized to devise and to 
provide by agency rule a system of work incentive credits which may be 
awarded by the department to persons committed to its custody for any 
felony prison term other than life imprisonment. 

(b) Work incentive credits may be awarded by the department to 
recognize inmates' institutional attainments in academic or vocational 
education, satisfactory performance of work assignments made by the penal 
institution, and compliance with satisfactory behavior standards established 
by the department. 

(c) The department may award up to one day of work incentive credits 
for each day during which the subject inmate has participated in approved 
educational or other counseling programs, has satisfactorily performed 
work tasks assigned by the penal institution, and has complied with 
satisfactory behavior standards established by the department. 



215 



42-5-101 PENAL INSTITUTIONS 42-5-101 

(d) Any work incentive credits awarded an inmate by the department 
shall be reported by the department to the State Board of Pardons and 
Paroles which shall consider such credits when making a final parole release 
decision regarding the subject inmate. The department is authorized to 
recommend the board apply the work incentive credits to advance any 
tentative parole release date already established for the subject inmate. 

(e) The department also shall report to the State Board of Pardons and 
Paroles the cases of inmates who decline or refuse to participate in work, 
educational, or counseling programs, who fail to comply with satisfactory 
behavior standards, and who therefore refuse to earn work incentive 
credits. (Code 1981, § 42-5-101, enacted by Ga. L. 1992, p. 3221, § 3.) 

Editor's notes. — Former Code Section Ga. L. 1964, p. 495, § 1; Ga. L. 1968, p. 1399, 

42-5-101, pertaining to the applicability of § 6; Ga. L. 1976, p. 949, § 1; and Ga. L. 

Code Section 42-5-100 to persons sentenced 1978, p. 985, § 1, and was repealed by Ga. L. 

prior to July 1, 1976, was based on Ga. L. 1983, p. 1340, § 2, effective January 1, 1984. 
1956, p. 161, § 24; Ga. L. 1961, p. 127, § 1; 



216 



42-6-1 



DETAINERS 

CHAPTER 6 



42-6-1 



DETAINERS 



Sec. 

42-6-1. 

42-6-2. 

42-6-3. 



42-6-4. 



42-6-5. 



Article 1 
General Provisions 

Definitions. 

When detainers to be accepted 
and filed by department. 
Time limit for trial; notice and 
request for final disposition; no- 
tification of inmate and inter- 
ested parties; effect of escape by 
inmate. 

Effect of failure to meet time 
limit for trial after delivery of 
inmate pursuant to Code Section 
24-10-60. 

Temporary custody of inmate re- 
questing disposition of pending 
indictment or accusation. 



Sec. 
42-6-6. 



Applicability of article to men- 
tally ill persons. 

Article 2 



Interstate Agreement on Detainers 

42-6-20. Enactment and text of agree- 
ment. 

42-6-21. Meaning of phrase "appropriate 
court." 

42-6-22. Enforcement of agreement; co- 
operation with other states. 

42-6-23. Appointment of central adminis- 
trator and information agent. 

42-6-24. Delivery of inmate mandatory 
when required by operation of 
agreement. 

42-6-25. Escape by person in custody un- 
der agreement. 



Administrative rules and regulations. — Rules of Georgia Board of Offender Reha- 
Detainers generally, Official Compilation of bilitation, Chapter 41 5-2-4-. 09. 
Rules and Regulations of State of Georgia, 

JUDICIAL DECISIONS 

This chapter does not require the filing of Cited in Reed v. State, 249 Ga. 344, 290 

a detainer, but only states what action is S.E.2d 469 (1982). 
required by an inmate if a detainer is filed. 
Riley v. State, 180 Ga. App. 409, 349 S.E.2d 
274 (1986). 

ARTICLE 1 
GENERAL PROVISIONS 

JUDICIAL DECISIONS 

Strict construction. — Detainer statutes must be strictly construed. Street v. State, 211 
are in derogation of the common law and Ga. App. 230, 438 S.E.2d 693 (1993). 

42-6-1. Definitions. 

As used in this article, the term: 

(1) "Commissioner" means the commissioner of corrections. 



217 



42-6-1 



PENAL INSTITUTIONS 



42-6-1 



(2) "Department" means the Department of Corrections. 

(3) "Detainer" means a written instrument executed by the prosecut- 
ing officer of a court and filed with the department requesting that the 
department retain custody of an inmate pending delivery of the inmate 
to the proper authorities to stand trial upon a pending indictment or 
accusation, or to await final disposition of all appeals and other motions 
which are pending on any outstanding sentence, and to which is attached 
a copy of the indictment, accusation, or conviction which constitutes the 
basis of the request. The request shall contain a statement that the 
prosecuting officer desires and intends to bring the inmate to trial upon 
the pending indictment or accusation, and in the case of an outstanding 
sentence, that he intends to seek final disposition of all appeals and other 
motions. (Ga. L. 1968, p. 1110, § 1; Ga. L. 1982, p. 3, § 42; Ga. L. 1982, 
p. 1373, §§ 1, 2; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1.) 

JUDICIAL DECISIONS 



Matters constituting "detainer." — Defen- 
dant's admission in his brief that the district 
attorney filed a letter with the department of 
corrections stating there was an outstanding 
warrant for the defendant, and that the State 
intended to prosecute, substantially com- 
plied with the codal definition of a 
"detainer." Riley v. State, 180 Ga. App. 409, 
349S.E.2d274 (1986). 

Order of court not "detainer." — An 



order issued by the trial court directing the 
Department of Offender Rehabilitation to 
produce defendant for arraignment and 
trial on certain dates was not a detainer, and 
defendant was not required to follow the 
procedure outlined in Code Section 42-6-3 
for ensuring the trial date after he had filed 
a demand for speedy trial. Street v. State, 21 1 
Ga. App. 230, 438 S.E.2d 693 (1993). 



OPINIONS OF THE ATTORNEY GENERAL 



This section is no more than a definition; 

it does not command the filing of a detainer 
nor any response on the part of the board. 
1969 Op. Att'y Gen. No. 69-410. 

Article not an ex post facto or retroactive 
law. 1969 Op. Att'y Gen. No. 69-95. 

Primary purpose of this article is to aid 
the prisoner in rendering his future more 
certain by allowing him to request disposi- 
tion of outstanding charges against him 
while he is confined; such a purpose is 
inconsistent with an authorization to the 
Board of Offender Rehabilitation (Correc- 
tions) to hold the prisoner after his sentence 
has expired. 1969 Op. Att'y Gen. No. 69-410. 

Applicable to prisoners with appeals pend- 
ing upon prior convictions. — While 
§§ 42-6-1 through 42-6-6 do not specifically 
mention prisoners with appeals pending 
upon prior convictions, there is nothing in 
the statutes which would prohibit either a 
district attorney or a sheriff from writing the 



Board of Offender Rehabilitation (Correc- 
tions) that such a situation exists with refer- 
ence to a prisoner, and from sending an 
arresting officer with a warrant to pick up 
the prisoner upon release. 1972 Op. Att'y 
Gen. No. U 72-1 01 (rendered prior to 1982 
amendment). 

Detention after expiration of sentence. — 
It was not contemplated that the board 
should have power to hold a prisoner after 
expiration of his sentence. 1969 Op. Att'y 
Gen. No. 69-410. 

Request for detention from county proba- 
tion department. — As officers and employ- 
ees of county probation departments are not 
prosecuting officers of court, requests of 
county probation department for detention 
of an inmate on his release date cannot be 
treated as detainers. 1969 Op. Att'y Gen. No. 
69-268. 

A request for the retention of an inmate 
supported by warrant only does not consti- 



218 



42-6-2 DETAINERS 42-6-3 

tute filing of a detainer within the meaning Recourse in lieu of detainer. — Although 
of this section. 1969 Op. Att'y Gen. No. the detainer procedure may be invoked by 
69-23. an accusation without a waiver of indictment 
Request for detention and return of in- by grand jury, this procedure will not autho- 
mate in Georgia prison system to county for rize the Board of Offender Rehabilitation 
service of sentence already imposed and to (Corrections) to hold a prisoner after his 
be served in county work camp (now county sentence has expired; the district attorney 
correctional institution) is not detainer can arrest the prisoner upon his release and 
within the meaning of §§ 42-6-1 through proceed against the prisoner as he would 
42-6-6; the same relates solely to requests for pr0 ceed against any other criminal defen- 
ce detention of an inmate pending delivery dant 1969 Qp Att . GGn No 69 . 410 
for trial upon pending charges. 1968 Op. 
Att'y Gen. No. 68-502. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and C.J.S. — 72 C.J.S., Prisons and Rights of 

Correctional Institutions, §§ 148-151. Prisoners, §§ 135, 136. 

42-6-2. When detainers to be accepted and filed by department. 

The department shall accept and file only those detainers which meet the 
requirements of this article and which are filed in accordance with this 
article; provided, however, this article shall not apply to detainers filed by 
the authorities of the United States government or of any of the other 
several states or of any foreign state. (Ga. L. 1968, p. 1110, § 1.) 

42-6-3. Time limit for trial; notice and request for final disposition; 
notification of inmate and interested parties; effect of escape by 
inmate. 

(a) Whenever a person has entered upon a term of imprisonment in a 
penal institution under the jurisdiction of the department and whenever 
during the continuance of the term of imprisonment there is pending in 
any court in this state any untried indictment or accusation on the basis of 
which a detainer has been filed against such an inmate, he shall be brought 
to trial within two terms of court after he has caused to be delivered to the 
prosecuting officer and the clerk of the appropriate court of the prosecut- 
ing officer's jurisdiction written notice of the place of his imprisonment and 
his request that a final disposition be made of the indictment or accusation; 
provided, however, that, for good cause shown in open court, the inmate or 
his counsel being present, the court having jurisdiction of the matter may 
grant any necessary or reasonable continuance. The request of the inmate 
shall be accompanied by a certificate of the department stating the term of 
commitment under which the inmate is being held, the computed expira- 
tion date of the commitment, and the time of parole eligibility of the 
inmate. 

(b) The written notice and request for final disposition referred to in 
subsection (a) of this Code section shall be given or sent by the inmate to 

219 



42-6-3 PENAL INSTITUTIONS 42-6-3 

the commissioner who shall promptly forward it, together with the certifi- 
cate referred to in subsection (a) of this Code section, to the appropriate 
prosecuting officer and court by registered or certified mail. 

(c) Within 15 days, the warden, superintendent, or other official having 
physical custody of the inmate shall inform him of the source and furnish 
him with a copy of the contents of any detainer filed against him and shall 
also inform him of his right to make a request for a final disposition of the 
indictment or accusation upon which the detainer is based. 

(d) Any request for final disposition of a pending indictment or accusa- 
tion made by an inmate pursuant to subsection (a) of this Code section shall 
operate as a request for final disposition of all untried indictments or 
accusations on the basis of which detainers have been filed against the 
inmate from the county to whose prosecuting official the request for a final 
disposition is specifically directed. The commissioner shall promptly notify 
all interested prosecuting officers and courts in the several jurisdictions 
within the county to which the inmate's request for final disposition is being 
sent of the proceeding being initiated by the inmate. Notification sent 
pursuant to this subsection shall be accompanied by copies of the inmate's 
written notice and request and by the certificate. If trial is not had on any 
indictment or accusation upon which a detainer has been based within two 
terms of court after the receipt by the appropriate prosecuting officers and 
court of the inmate's request for final disposition, provided no continuance 
has been granted, all detainers based upon such pending indictments or 
accusations shall be stricken and dismissed from the records of the 
department. 

(e) Escape from custody by an inmate subsequent to his execution of the 
request for a final disposition of any pending indictment or accusation shall 
automatically void the request for final disposition and the same shall be 
stricken and dismissed from the records of the department. (Ga. L. 1968, p. 
1110, § l;Ga. L. 1982, p. 3, § 42.) 

Cross references. — Demand for trial 
generally, § 17-7-170 et seq. 

JUDICIAL DECISIONS 

Defendants serving time outside of state, he is not denied the right to a speedy trial 

— This section has no application to a within the meaning of Ga. Const. 1983, Art. 

defendant who is serving in a penal institu- I, Sec. I, Para. XI or U.S. Const, Art. VI, 

tion outside of the state and not under the when his trial is delayed after he withdraws 

jurisdiction of the Board of Corrections. his guilty plea. Butler v. State, 126 Ga. App. 

Butler v. State, 126 Ga. App. 22, 189 S.E.2d 22, 189 S.E.2d 870 (1972). 
870 (1972) . An order issued by the trial court divesting 

Speedy trial. — Where the defendant is the Department of Offender Rehabilitation 

not within the purview of subsection (a) of to produce defendant for arraignment and 

this section, nor does the record show com- trial on certain dates was not a detainer and 

pliance with §§ 17-7-170, 17-8-21, or 17-8-33, defendant was not required to follow the 

220 



42-6-4 DETAINERS 42-6-5 

procedure authorized in this section for court" was never actuated by a demand for 

ensuring the trial date after he had filed a trial. Riley v. State, 180 Ga. App, 409, 349 

demand for speedy trial. Street v. State, 211 S.E.2d 274 (1986). 

Ga. App. 230, 438 S.E.2d 693 (1993). Sanction for violating subsection (a). — 

Trial requirement not actuated by demand The only sanction provided for the states 

for trial. — Where the defendant freely failure to comply with the requirements of 

admitted to the trial court that he made no subsection (a) is that the detainers based 

demand for a speedy trial or disposition of upon pen ding indictments or accusations 

his indictment to the appropriate authori- shall ^ strick(;n or dismissed. Quick v. State, 

ties, the requirement that "an inmate ... 198 Ga A p 353 m S.E.2d 758 (1991). 
shall be brought to trial within two terms of 

RESEARCH REFERENCES 

ALR. — What justifies escape or attempt Duress, necessity, or conditions of confine- 
to escape, or assistance in that regard, 70 ment as justification for escape from prison, 
ALR2d 1430. 69 ALR3d 678. 

42-6-4. Effect of failure to meet time limit for trial after delivery of inmate 
pursuant to Code Section 24-10-60. 

If an inmate is not brought to trial upon a pending indictment or 
accusation within two terms of court after delivery of the inmate to the 
sheriff or a deputy sheriff pursuant to subsection (a) of Code Section 
24-10-60, provided no continuance has been granted, all detainers based 
upon the pending indictments or accusations shall be stricken and dis- 
missed from the records of the department. (Ga. L. 1968, p. 1110, § 1.) 

Cross references. — Demand for trial 
generally, § 17-7-170 et seq. 

OPINIONS OF THE ATTORNEY GENERAL 

This article not an ex post facto or retro- Board of Offender Rehabilitation (Correc- 

active law. 1969 Op. Att'y Gen. No. 69-95. tions) to hold the prisoner after his sentence 

The primary purpose of this article is to has expired. 1969 Op. Att'y Gen. No. 69-410. 
aid the prisoner in rendering his future Detaining prisoner after expiration of sen- 
more certain by allowing him to request the tence. — It was not contemplated that the 
disposition of outstanding charges against board should have power to hold a prisoner 
him while he is confined; such a purpose is after the expiration of his sentence. 1969 
inconsistent with an authorization to the Op. Att'y Gen. No. 69-410. 

42-6-5. Temporary custody of inmate requesting disposition of pending 
indictment or accusation. 

(a) In response to the request of an inmate for final disposition of any 
pending indictment or accusation made pursuant to Code Section 42-6-3 or 
pursuant to an order of a court entered pursuant to subsection (a) of Code 
Section 24-10-60, the department shall offer to deliver temporary custody of 
the inmate to the sheriff or a deputy sheriff of the county in which the 
indictment or accusation is pending against the inmate. The judge of the 

221 



42-6-5 PENAL INSTITUTIONS 42-6-5 

court in which the proceedings are pending is authorized to and shall issue 
an ex parte order directed to the department requiring the delivery of the 
inmate to the sheriff or a deputy sheriff of the county in which the trial is 
to be held. 

(b) The sheriff or a deputy sheriff of a county accepting temporary 
custody of an inmate shall present proper identification and a certified copy 
of the indictment or accusation upon which trial is to be had. 

(c) If the sheriff or deputy sheriff fails or refuses to accept temporary 
custody of the inmate, detainers based upon indictments or accusations 
upon which trial has been sought shall be stricken and dismissed from the 
records of the department. 

(d) The temporary custody referred to in this article shall be only for the 
purpose of permitting prosecution on the pending indictments or accusa- 
tions which form the basis of the detainer or detainers filed against the 
inmate. 

(e) At the earliest practicable time consonant with the purposes of this 
article, the inmate shall be returned by the sheriff or a deputy sheriff to the 
custody of the department. 

(f ) During the continuance of temporary custody or while the inmate is 
otherwise being made available for trial as required by this article, the 
sentence being served by the inmate shall continue to run and good time 
shall be earned by the inmate to the same extent that the law allows for any 
other inmate serving under the jurisdiction of the department. 

(g) From the time that the sheriff or a deputy sheriff receives custody of 
an inmate pursuant to this article and until the inmate is returned to the 
physical custody of the department, the county to which the inmate is 
transported shall be responsible for the safekeeping of the inmate and shall 
pay all costs of transporting, caring for, keeping, and returning the inmate. 
Any habeas corpus action instituted by the inmate while in the custody of 
the sheriff shall be defended by the county attorney and the expenses of 
such litigation shall be paid by the county. (Ga. L. 1968, p. 1110, § 1; Ga. L. 
1969, p. 606, § 1; Ga. L. 1982, p. 3, § 42.) 

Cross references. — Demand for trial 
generally, § 17-7-170 et seq. 

JUDICIAL DECISIONS 

Cited in Westbrook v. Zant, 575 F. Supp. 
186 (M.D. Ga. 1983). 



222 



42-6-6 



DETAINERS 



42-6-6 



OPINIONS OF THE ATTORNEY GENERAL 



Computation of good-time allowances and 
deductions. — With the limited exception of 
this section relating to temporary custody of 
convicted inmates in county facilities, 
good-time allowances and deductions there- 
from can only be computed when inmates 
are under the jurisdiction and control of the 
institutions operated by the Department of 



Offender Rehabilitation (Corrections); 
moreover, with the limited exception of this 
section, neither sheriffs nor the department 
can take jail credit away from inmates who 
have misbehaved in jails prior to their being 
sent to correctional institutions. 1972 Op. 
Att'y Gen. No,. 72-61. 



42-6-6. Applicability of article to mentally ill persons. 

This article shall not apply to any person who has been adjudged to be 
mentally ill. (Ga. L. 1968, p. 1110, § 1.) 

Cross references. — Examination, treat- 
ment, hospitalization of mentally ill persons 
generally, Ch. 3, T. 37. 

ARTICLE 2 
INTERSTATE AGREEMENT ON DETAINERS 



JUDICIAL DECISIONS 



Congressional intent. — Congress has pro- 
vided in this article an efficient and effective 
method for resolving a prisoner's claim that 
he has been denied a speedy trial and is, 
therefore, subject to an illegal detainer. Re- 
quiring resort to remedies under this article 
will remove the necessity of intervention by 
the federal courts, furthering the established 
principle of comity between state and fed- 
eral courts. Hurst v. Hogan, 435 F. Supp. 125 
(N.D. Ga. 1977). 

Right to a speedy trial. — This article is 
designed to provide the right to a speedy 
trial for defendants who are not subject to 
the judicial power of the state having an 
untried indictment. The agreement has pro- 
visions for sanctions if a speedy disposition 
of the pending indictment is not effected. If 
trial is not held within 120 days of the arrival 
of the movant within the jurisdiction of the 
court in which the indictment is pending 
and before the movant is returned to the 
jurisdiction of the sending state, the untried 
indictment shall be dismissed with preju- 
dice. Hunt v. State, 147 Ga. App. 787, 250 
S.E.2d 517 (1978). 

The purpose of this article is to ensure 
speedy trial on pending charges before 



staleness and difficulty of proof set it. These 
are pretrial, and not sentencing, consider- 
ations. Suggs v. Hopper, 234 Ga. 242, 215 
S.E.2d 246 (1975); Bernyk v. State, 182 Ga. 
App. 329, 355 S.E.2d 753 (1987). 

Where the defendant applies for a speedy 
trial under the provisions of § 17-7-170 and 
cannot procedurally seek a speedy trial un- 
der that section because he is not physically 
present or within the subpoena power of the 
Georgia courts, his right to a speedy trial 
must be determined under this article if it 
was utilized to secure his trial. Johnson v. 
State, 154 Ga. App. 512, 268 S.E.2d 782 
(1980). 

Invocation of article by nonpresent defen- 
dant. — In order for a demand for trial 
pursuant to the provisions of § 17-7-170 to 
serve as the predicate for an absolute acquit- 
tal because of the failure of compliance 
therewith, it is necessary that the filing com- 
ply with the provisions of that statute, but 
defendant who is not able to satisfy 
§ 17-7-170 and thus not available to pursue 
his remedy in the appropriate state court is 
still not without remedy, since he can invoke 
the provisions of this article. Luke v. State, 
180 Ga. App. 378, 349 S.E.2d 391 (1986), 



223 



42-6-20 PENAL INSTITUTIONS 42-6-20 

overruled on other grounds, State v. Collins, Comity between states. — A state need not 

201 Ga. App. 500, 411 S.E.2d 546 (1991). reduce a capital sentence authorized under 

Prerequisite to seeking habeas corpus. — its own laws because of the effects of another 

Where a prisoner in federal custody seeks to state's judicial processes, brought about by 

challenge a detainer lodged against him by operation of this article. Cobb v. State, 244 

officials of a state other than that in which he Ga. 344, 260 S.E.2d 60 (1979). 

is incarcerated, the prisoner must exhaust Cited in Sassoon v. Stynchombe, 654 F.2d 

his remedies under this article before seek- 371 15^ qi t 1981). 
ing federal habeas corpus. Hurst v. Hogan, 
435 F. Supp. 125 (N.D. Ga. 1977). 

RESEARCH REFERENCES 

Am. Jur. 2d. — 60 Am. Jur. 2d, Penal and cation of interstate agreement on detainers, 
Correctional Institutions, § 151. 98 ALR3d 160. 

ALR. — Validity, construction, and appli- 

42-6-20. Enactment and text of agreement. 

The Agreement on Detainers is enacted into law and entered into by this 
State with all other jurisdictions legally joining therein in the form 
substantially as follows: 

The contracting states solemnly agree that: 

Article I. 

The party states find that charges outstanding against a prisoner, 
detainers based on untried indictments, informations or complaints, and 
difficulties in securing speedy trial of persons already incarcerated in other 
jurisdictions, produce uncertainties which obstruct programs of prisoner 
treatment and rehabilitation. Accordingly, it is the policy of the party states 
and the purpose of this agreement to encourage the expeditious and 
orderly disposition of such charges and determination of the proper status 
of any and all detainers based on untried indictments, information or 
complaints. The party states also find that proceedings with reference to 
such charges and detainers, when emanating from another jurisdiction, 
cannot properly be had in the absence of cooperative procedures. It is the 
further purpose of this agreement to provide such cooperative procedures. 

Article II. 
As used in this agreement: 

(a) "State" shall mean a state of the United States; the United States of 
America; a territory or possession of the United States; the District of 
Columbia; the Commonwealth of Puerto Rico. 

(b) "Sending state" shall mean a state in which a prisoner is incarcerated 
at the time that he initiates a request for final disposition pursuant to Article 
III hereof or at the time that a request for custody or availability is initiated 
pursuant to Article IV hereof. 

224 



42-6-20 DETAINERS 42-6-20 

(c) "Receiving state" shall mean the state in which trial is to be had on 
an indictment, information or complaint pursuant to Article III or Article 
IV hereof. 

Article III. 

(a) Whenever a person has entered upon a term of imprisonment in a 
penal or correctional institution of a party state, and whenever during the 
continuance of the term of imprisonment there is pending in any other 
party state any untried indictment, information or complaint on the basis of 
which a detainer has been lodged against the prisoner, he shall be brought 
to trial within one hundred eighty days after he shall have caused to be 
delivered to the prosecuting officer and the appropriate court of the 
prosecuting officer's jurisdiction written notice of the place of his impris- 
onment and his request for a final disposition to be made of the indictment, 
information or complaint, provided that for good cause shown in open 
court, the prisoner or his counsel being present, the court having jurisdic- 
tion of the matter may grant any necessary or reasonable continuance. The 
request of the prisoner shall be accompanied by the certificate of the 
appropriate official having custody of the prisoner, stating the term of 
commitment under which the prisoner is being held, the time already 
served, the time remaining to be served on the sentence, the amount of 
good time earned, the time of parole eligibility of the prisoner, and any 
decisions of the state parole agency relating to the prisoner. 

(b) The written notice and request for final disposition referred to in 
paragraph (a) hereof shall be given or sent by the prisoner to the warden, 
commissioner of corrections or other official having custody of him, who 
shall promptly forward it together with the certificate to the appropriate 
prosecuting official and court by registered or certified mail, return receipt 
requested. 

(c) The warden, commissioner of corrections or other official having 
custody of the prisoner shall promptly inform him of the source and 
contents of any detainer lodged against him and shall also inform him of his 
right to make a request for final disposition of the indictment, information, 
or complaint on which the detainer is based. 

(d) Any request for final disposition made by a prisoner pursuant to 
paragraph (a) hereof shall operate as a request for final disposition of all 
untried indictments, informations or complaints on the basis of which 
detainers have been lodged against the prisoner from the state to whose 
prosecuting official the request for final disposition is specifically directed. 
The warden, commissioner of corrections or other official having custody of 
the prisoner shall forthwith notify all appropriate prosecuting officers and 
courts in the several jurisdictions within the state to which the prisoner's 
request for final disposition is being sent of the proceeding being initiated 
by the prisoner. Any notification sent pursuant to this paragraph shall be 

225 



42-6-20 PENAL INSTITUTIONS 42-6-20 

accompanied by copies of the prisoner's written notice, request, and the 
certificate. If trial is not had on any indictment, information or complaint 
contemplated hereby prior to the return of the prisoner to the original 
place of imprisonment, such indictment, information or complaint shall 
not be of any further force or effect, and the court shall enter an order 
dismissing the same with prejudice. 

(e) Any request for final disposition made by a prisoner pursuant to 
paragraph (a) hereof shall also be deemed to be a waiver of extradition with 
respect to any charge or proceeding contemplated thereby or included 
therein by reason of paragraph (d) hereof, and a waiver of extradition to 
the receiving state to serve any sentence there imposed upon him, after 
completion of his term of imprisonment in the sending state. The request 
for final disposition shall also constitute a consent by the prisoner to the 
production of his body in any court where his presence may be required in 
order to effectuate the purposes of this agreement and a further consent 
voluntarily to be returned to the original place of imprisonment in 
accordance with the provisions of this agreement. Nothing in this para- 
graph shall prevent the imposition of a concurrent sentence if otherwise 
permitted by law. 

(f ) Escape from custody by the prisoner subsequent to his execution of 
the request for final disposition referred to in paragraph (a) hereof shall 
void the request. 

Article IV. 

(a) The appropriate officer of the jurisdiction in which an untried 
indictment, information or complaint is pending shall be entitled to have a 
prisoner against whom he has lodged a detainer and who is serving a term 
of imprisonment in any party state made available in accordance with 
Article V (a) hereof upon presentation of a written request for temporary 
custody or availability to the appropriate authorities of the state in which the 
prisoner is incarcerated: provided that the court having jurisdiction of such 
indictment, information or complaint shall have duly approved, recorded 
and transmitted the request; and provided further that there shall be a 
period of thirty days after receipt by the appropriate authorities before the 
request be honored, within which period the governor of the sending state 
may disapprove the request for temporary custody or availability, either 
upon his own motion or upon motion of the prisoner. 

(b) Upon receipt of the officer's written request as provided in para- 
graph (a) hereof, the appropriate authorities having the prisoner in custody 
shall furnish the officer with a certificate stating the term of commitment 
under which the prisoner is being held, the time already served, the time 
remaining to be served on the sentence, the amount of good time earned, 
the time of parole eligibility of the prisoner, and any decisions of the state 
parole agency relating to the prisoner. Said authorities simultaneously shall 

226 



42-6-20 DETAINERS 42-6-20 

furnish all other officers and appropriate courts in the receiving state who 
have lodged detainers against the prisoner with similar certificates and with 
notices informing them of the request for custody or availability and of the 
reasons therefor. 

(c) In respect of any proceeding made possible by this Article, trial shall 
be commenced within one hundred twenty days of the arrival of the 
prisoner in the receiving state, but for good cause shown in open court, the 
prisoner or his counsel being present, the court having jurisdiction of the 
matter may grant any necessary or reasonable continuance. 

(d) Nothing contained in this Article shall be construed to deprive any 
prisoner of any right which he may have to contest the legality of his 
delivery as provided in paragraph (a) hereof, but such delivery may not be 
opposed or denied on the ground that the executive authority of the 
sending state has not affirmatively consented to or ordered such delivery. 

(e) If trial is not had on any indictment, information or complaint 
contemplated hereby prior to the prisoner's being returned to the original 
place of imprisonment pursuant to Article V (e) hereof, such indictment, 
information or complaint shall not be of any further force or effect, and the 
court shall enter an order dismissing the same with prejudice. 

Article V. 

(a) In response to a request made under Article III or Article IV hereof, 
the appropriate authority in a sending state shall offer to deliver temporary 
custody of such prisoner to the appropriate authority in the state where 
such indictment, information or complaint is pending against such person 
in order that speedy and efficient prosecution may be had. If the request for 
final disposition is made by the prisoner, the offer of temporary custody 
shall accompany the written notice provided for in Article III of this 
agreement. In the case of a federal prisoner, the appropriate authority in 
the receiving state shall be entitled to temporary custody as provided by this 
agreement or to the prisoner's presence in federal custody at the place for 
trial, whichever custodial arrangement may be approved by the custodian. 

(b) The officer or other representative of a State accepting an offer of 
temporary custody shall present the following upon demand: 

(1) Proper identification and evidence of his authority to act for the 
state into whose temporary custody the prisoner is to be given; 

(2) A duly certified copy of the indictment, information or complaint 
on the basis of which the detainer has been lodged and on the basis of 
which the request for temporary custody of the prisoner has been made. 

(c) If the appropriate authority shall refuse or fail to accept temporary 
custody of said person, or in the event that an action on the indictment, 
information or complaint on the basis of which the detainer has been 

227 



42-6-20 PENAL INSTITUTIONS 42-6-20 

lodged is not brought to trial within the period provided in Article III or 
Article IV hereof, the appropriate court of the jurisdiction where the 
indictment, information or complaint has been pending shall enter an 
order dismissing the same with prejudice, and any detainer based thereon 
shall cease to be of any force or effect. 

(d) The temporary custody referred to in this agreement shall be only 
for the purpose of permitting prosecution on the charge or charges 
contained in one or more untried indictments, informations or complaints 
which form the basis of the detainer or detainers or for prosecution on any 
other charge or charges arising out of the same transaction. Except for his 
attendance at court and while being transported to or from any place at 
which his presence may be required, the prisoner shall be held in a suitable 
jail or other facility regularly used for persons awaiting prosecution. 

(e) At the earliest practicable time consonant with the purposes of this 
agreement, the prisoner shall be returned to the sending state. 

(f ) During the continuance of temporary custody or while the prisoner 
is otherwise being made available for trial as required by this agreement, 
time being served on the sentence shall continue to run but good time shall 
be earned by the prisoner only if, and to the extent that, the law and 
practice of the jurisdiction which imposed the sentence may allow. 

(g) For all purposes other than that for which temporary custody as 
provided in this agreement is exercised, the prisoner shall be deemed to 
remain in the custody of and subject to the jurisdiction of the sending state 
and any escape from temporary custody may be dealt with in the same 
manner as an escape from the original place of imprisonment or in any 
other manner permitted by law. 

(h) From the time that a party state receives custody of a prisoner 
pursuant to this agreement until such prisoner is returned to the territory 
and custody of the sending state, the state in which the one or more untried 
indictments, informations or complaints are pending or in which trial is 
being had shall be responsible for the prisoner and shall also pay all costs 
of transporting, caring for, keeping and returning the prisoner. The 
provisions of this paragraph shall govern unless the states concerned shall 
have entered into a supplementary agreement providing for a different 
allocation of costs and responsibilities as between or among themselves. 
Nothing herein contained shall be construed to alter or affect any internal 
relationship among the departments, agencies and officers of and in the 
government of a party state, or between a party state and its subdivisions, as 
to the payment of costs, or responsibilities therefor. 

Article VI. 

(a) In determining the duration and expiration dates of the time periods 
provided in Articles III and IV of this agreement, the running of said time 

228 



42-6-20 DETAINERS 42-6-20 

periods shall be tolled whenever and for as long as the prisoner is unable to 
stand trial, as determined by the court having jurisdiction of the matter. 

(b) No provision of this agreement, and no remedy made available by 
this agreement, shall apply to any person who is adjudged to be mentally ill. 

Article VII. 

Each state party to this agreement shall designate an officer who, acting 
joindy with like officers of other party states, shall promulgate rules and 
regulations to carry out more effectively the terms and provisions of this 
agreement, and who shall provide, within and without the state, informa- 
tion necessary to the effective operation of this agreement. 

Article VIII. 

This agreement shall enter into full force and effect as to a party state 
when such state has enacted the same into law. A state party to this 
agreement may withdraw herefrom by enacting a statute repealing the 
same. However, the withdrawal of any state shall not affect the status of any 
proceedings already initiated by inmates or by state officers at the time such 
withdrawal takes effect, nor shall it affect their rights in respect thereof. 

Article IX. 

This agreement shall be liberally construed so as to effectuate its 
purposes. The provisions of this agreement shall be severable and if any 
phrase, clause, sentence or provision of this agreement is declared to be 
contrary to the Constitution of any party state or of the United States or the 
applicability thereof to any government, agency, person or circumstance is 
held invalid, the validity of the remainder of this agreement and the 
applicability thereof to any government, agency, person or circumstance 
shall not be affected thereby. If this agreement shall be held contrary to the 
Constitution of any state party hereto, the agreement shall remain in full 
force and effect as to the remaining states and in full force and effect as to 
the state affected as to all severable matters. (Ga. L. 1972, p. 938, § 1.) 

JUDICIAL DECISIONS 
Analysis 

General Consideration 

Constitutionality 

Initiating Detaining Proceedings 

1. Article III 

2. Article IV 

3. Article V 

General Consideration mation, or complaint, and does not apply to 

warrants for arrest for probation violation. 
Applicability. — This article by its terms Suggs v. Hopper, 234 Ga. 242, 215 S.E.2d 246 
relates only to an untried indictment, infor- (1975). 

229 



42-6-20 



PENAL INSTITUTIONS 



42-6^20 



General Consideration (Cont'd) 

This article by its terms relates only to an 
untried indictment, information, or com- 
plaint, and does not apply to warrants for 
arrest for armed robbery. Newt v. State, 190 
Ga. App. 301, 379 S.E.2d 11 (1989). 

This article does not address itself to trans- 
fers from the receiving jurisdiction back to 
the sending jurisdiction either after trial or 
after sentencing. State v. Sassoon, 240 Ga. 
745, 242 S.E.2d 121 (1978). 

Effect of failure to comply with article. — 
Where the appellant failed to comply with 
the requirements of this article it renders his 
request for trial invalid. Greathouse v. State, 
156 Ga. App. 491, 274 S.E.2d 835 (1980). 

Where an escapee from a Florida prison 
committed crimes in Georgia, before being 
caught and returned to Florida, and was 
indicted in Georgia but did not comply with 
the procedures under this section to trigger 
the 180-day rule, he was not denied a speedy 
trial. Cothern v. State, 195 Ga. App. 513, 393 
S.E.2d763 (1990). 

Cited in Duchac v. State, 151 Ga. App. 374, 
259 S.E.2d 740 (1979); Johnson v. State, 154 
Ga. App. 512, 268 S.E.2d 782 (1980); 
Sassoon v. Stynchombe, 654 F.2d 371 (5th 
Cir. 1981); Reed v. State, 249 Ga. 344, 290 
S.E.2d 469 (1982); Inman v. State, 191 Ga. 
App. 497, 382 S.E.2d 122 (1989); Ricks v. 
State, 204 Ga. App. 441, 419 S.E.2d 517 
(1992). 

Constitutionality 

Constitutionality of lodging detainer. — 

The lodging of a detainer by the proper 
officials of this state against a person serving 
a term of imprisonment in the correctional 
institution of a sister state does not violate 
the provisions of U.S. Const., Amends, six, 
eight and fourteen or Ga. Const. 1945, Art. I, 
Sec. I, Para. V (see Ga. Const. 1983, Art. I, 
Sec. I, Para. XI). Pollard v. State, 128 Ga. 
App. 470, 197 S.E.2d 158 (1973). 

Initiating Detaining Proceedings 

1. Article III 

One hundred eighty-day provision not in- 
flexible. — This agreement does not con- 
template that the 180-day provision is inflex- 
ible. Duchac v. State, 151 Ga. App. 374, 259 
S.E.2d 740 (1979). 



A holding that the state may ignore a 
prisoner's request until shortly before the 
expiration of the 180-day period provided in 
Article III, and then extend that period by 
initiating proceedings under Article IV, 
would effectively nullify the purpose of the 
180-day provision of Article III and deny to a 
prisoner the right to a speedy trial. Duchac v. 
State, 151 Ga. App. 374, 259 S.E.2d 740 
(1979). 

Delay in bringing defendant to trial. — 
Where any delay in bringing defendant to 
trial within the time prescribed by Art. Ill (a) 
was precipitated by defendant's agreement 
to a joint recommendation, the defendant 
cannot complain that he was not brought to 
trial in a timely manner. Smith v. State, 202 
Ga. App. 362, 414 S.E.2d 504 (1991), cert, 
denied, 202 Ga. App. 907, 414 S.E.2d 504 
(1992). 

Failure to begin trial within time limit. — 
Article III does not say that the untried 
indictment shall be dismissed if the prisoner 
is not brought to trial within 180 days after 
he has served his request for final disposi- 
tion upon the proper Georgia authorities. 
Price v. State, 237 Ga. 352, 227 S.E.2d 368 
(1976). 

Strict compliance with notice provisions 
required. — Facsimile transmission of defen- 
dant's request for final disposition was insuf- 
ficient as a matter of law since it was required 
to be sent by registered or certified mail. 
Clater v. State, 266 Ga. 511, 467 S.E.2d 537 
(1996). 

Defendant's direct notice of disposition. 
— Where defendant sent his request for a 
disposition of the charges directly to the 
state without a warden's certificate of an 
inmate's status, rather than through prison 
authorities, and the required certificate was 
eventually supplied at a later date, the 
180-day period provided in Article III began 
to run once the state received the certificate 
rather than when the state received the 
defendant's direct request. Thompson v. 
State, 186 Ga. App. 379, 367 S.E.2d 247, cert, 
denied, 186 Ga. App. 919, 367 S.E.2d 247 
(1988). 

Where guilt not questioned, no relief for 
violation. — A violation of the speedy trial 
provision (Article 111(a)) will support no 
post-conviction relief pursuant to 28 U.S.C. 
§ 2254 when the petitioner alleges no facts 
casting substantial doubt on the state trial's 



230 



42-6-20 



DETAINERS 



42-6-20 



reliability on the question of guilt. Seymore 
v. Alabama, 846 E 2d 1355 (11th Cir. 1988), 
cert, denied, 488 U.S. 1018, 109 S. Ct. 816, 
102 L. Ed. 2d 806 (1989). 

Foreign jurisdiction's delay not 
dispositive. — Where defendant was tried 
within 180 days after the requisite docu- 
ments were filed with all entities required by 
this section and where the initial failure to 
forward the detainer demand to the proper 
court was the result of a mistake by 
out-of-state authorities, there was no viola- 
tion of this section. Parrott v. State, 206 Ga. 
App. 829, 427 S.E.2d 276 (1993). 

2. Article IV 

Grace period inapplicable where U.S. gov- 
ernment a sending state. — The 30-day rule 
in paragraph (a) of Article IV which pro- 
vides for a period of 30 days after a request 
for temporary custody or availability before 
such request be honored, would appear to 
be inapplicable where the United States 
government is the sending state, keaves v. 
State, 242 Ga. 542, 250 S.E.2d 376 (1978), 
overruled on other grounds, Felker v. State, 
252 Ga. 351, 314 S.E.2d 621 (1984). 

Tacking time limits of Articles III and IV 
not permitted. — The 120-day provisions of 
Article IV may not be added to the 180-day 
provisions of Article III, once a proper re- 
quest under Article III has been made by the 
prisoner. Duchac v. State, 151 Ga. App. 374, 
259S.E.2d740 (1979). 

Tolling time limit. — Court was autho- 
rized to find that the 120-day time limit of 
this section was tolled by delay occasioned by 
the appellant's numerous pretrial motions, 
in the face of the state's good-faith efforts to 
expedite the trial. Cobb v. State, 244 Ga. 344, 
260 S.E.2d 60 (1979). 

Missing 120-day limit by one week. — 
Defendant could not complain that the state 
missed by one week beginning his trial 
within 120 days of his return to Georgia, 
where a trial date had been set with the 
agreement of defendant's attorney, defen- 
dant was returned to Georgia earlier than 
anticipated and then filed over 60 motions 



which necessarily had to be determined be- 
fore trial, and defendant did not raise any 
objections to the date set for trial until one 
day after the 120-day period had elapsed. 
Moon v. State, 258 Ga. 748, 375 S.E.2d 442 
(1988), cert, denied, 499 U.S. 982, 111 S. Ct. 
1638, 113 L. Ed. 2d 733 (1991), rev'd on 
other grounds sub nom. Zant v. Moon, 264 
Ga. 93, 440 S.E.2d 657 (1994). 

Right to pretransfer hearing. — A pris- 
oner incarcerated in a jurisdiction that has 
adopted the Uniform Criminal Extradition 
Act is entitled to the procedural protections 
of that Act, particularly the right to a 
pretransfer hearing before being transferred 
to another jurisdiction, pursuant to Art. IV 
of the Detainer Agreement. Lambert v. 
Jones, 250 Ga. 603, 299 S.E.2d 716 (1983). 

Extent of proper inquiries. — Proper in- 
quiries at pretransfer hearings are limited to 
whether the extradition documents on their 
face are in order; whether the petitioner has 
been charged with a crime in the demand- 
ing state; whether the petitioner is the per- 
son named in the request for extradition; 
and whether the petitioner is a fugitive. 
Lambert v. Jones, 250 Ga. 603, 299 S.E.2d 
716 (1983). 

3. Article V 

Effect of issuance of habeas corpus writ. 

— Once a detainer has been lodged against 
a prisoner and he has been removed from 
his original place of imprisonment to the 
receiving state, the issuance of a writ of 
habeas corpus ad prosequendum to compel 
his presence at trial is a request for tempo- 
rary custody within the meaning of this 
section. Reaves v. State, 242 Ga. 542, 250 
S.E.2d 376 (1978), overruled on other 
grounds, Felker v. State, 252 Ga. 351, 314 
S.E.2d621 (1984). 

Denial of speedy trial. — In a habeas 
corpus hearing to avoid extradition, the 
question whether a petitioner was denied a 
speedy trial by the demanding state is not an 
appropriate one for adjudication by the asy- 
lum state. Gilstrap v. Wilder, 233 Ga. 968, 213 
S.E.2d895 (1975). 



231 



42-6-21 PENAL INSTITUTIONS 42-6-25 

42-6-21. Meaning of phrase "appropriate court." 

The phrase "appropriate court," as used in the Agreement on Detainers' 
with reference to the courts of this state, means the superior courts of this 
state. (Ga. L. 1972, p. 938, § 2.) 

42-6-22. Enforcement of agreement; cooperation with other states. 

All courts, departments, agencies, officers, and employees of this state 
and its political subdivisions are directed to enforce the Agreement on 
Detainers and to cooperate with one another and with other party states in 
enforcing the agreement and effectuating its purpose. (Ga. L. 1972, p. 938, 

§ 3.) 

42-6-23. Appointment of central administrator and information agent. 

The commissioner of corrections shall appoint a person to serve as 
central administrator of and information agent for the Agreement on 
Detainers pursuant to Article VII of the agreement. (Ga. L. 1972, p. 938, 
§ 6; Ga. L. 1979, p. 652, § 1; Ga. L. 1985, p. 283, § 1.) 

42-6-24. Delivery of inmate mandatory when required by operation of 
agreement. 

It shall be lawful and mandatory upon the warden, superintendent, or 
other official in charge of a penal institution in this state to give over the 
person of any inmate thereof whenever so required by the operation of the 
Agreement on Detainers. (Ga. L. 1972, p. 938, § 5; Ga. L. 1974, p. 390, § 1.) 

42-6-25. Escape by person in custody under agreement. 

(a) It shall be unlawful for any person to escape from custody while in 
another state pursuant to the Agreement on Detainers. 

(b) A violation of subsection (a) of this Code section shall be punishable 
by confinement for not less than one nor more than five years. (Ga. L. 1972, 
p. 938, § 4.) 

RESEARCH REFERENCES 

ALR. — What justifies escape or attempt What constitutes "custody" under 18 USC 
to escape, or assistance in that regard, 70 § 751(a) defining offense of escape from 
ALR2d 1430. custody, 114 ALR Fed. 581. 

Duress, necessity, or conditions of confine- 
ment as justification for escape from prison, 
69 ALR3d 678. 



232 



TREATMENT OF YOUTHFUL OFFENDERS 

CHAPTER 7 



TREATMENT OF YOUTHFUL OFFENDERS 



Sec. 
42-7-1. 
42-7-2. 
42-7-3. 

42-7-4. 



42-7-5. 



Sec. 
Short title. 42-7-6. 

Definitions. 

Providing institutions and facili- 42-7-7. 
ties. 

Studies and diagnoses; place- 42-7-8 
ment of youthful offender by de- 

P artn V ent - 42-7-9. 

Transfer. 



Notification of State Board of 
Pardons and Paroles. 
Adoption of policies and proce- 
dures. 

Court recommendation of treat- 
ment as youthful offender. 
Construction of chapter. 



Cross references. — Judicial proceedings 
involving juveniles, Ch. 11, T. 15. Disposition 
of deprived, delinquent, and unruly chil- 
dren, as those terms are defined in 
§ 15-11-2, §§ 15-11-34 through 15-11-36. 
Powers and dudes of Department of Human 
Resources regarding children and youth ser- 
vices, § 49-5-1 et seq. 

Editor's notes. — Ga. L. 1985, p. 420, 
effective March 27, 1985, repealed the Code 
sections formerly codified at this chapter 
and enacted the current chapter. The 
former chapter, which also dealt with treat- 
ment of youthful offenders, consisted of 
Code Secuons 42-7-1 through 42-7-16. The 
former chapter also created the Youthful 
Offender Division of the Department of 
Offender Rehabilitation (now Department 
of Corrections) and described that former 



division's powers and duties. While several 
provisions of Code sections of the former 
chapter were carried forward into the new 
chapter (see historical citations in this chap- 
ter), the following Acts formed the basis of 
Code sections which were not carried for- 
ward: Ga. L. 1972, p. 592, §§ 3, 4, 5, 6, 7, 13, 
14; Ga. L. 1975, p. 900, §§ 2, 7; Ga. L. 1978, 
p. 922, § 1; Ga. L. 1985, p. 149, § 42; Ga. L. 
1985, p. 283, § 1. 

Section 2 of Ga. L. 1985, p. 420, not 
codified by the General Assembly, provided 
that that Act would not operate to deny any 
rights to any youthful offender currently on 
probation pursuant to the "Georgia Youth- 
ful Offender Act of 1972," but any such 
person would remain on probation subject 
to any conditions as previously specified. 



JUDICIAL DECISIONS 



Effect of previous conviction under this 
chapter. — This chapter contains signifi- 
candy different provisions than the First 
Offender Act (OCGA § 42-8-60 et seq.); 
specifically, this chapter does not authorize 



the discharge of a felony conviction and 
such conviction under this chapter may 
serve as a predicate for sentencing under 
OCGA § 17-10-7. Lazenby v. State, 221 Ga. 
App. 148, 470 S.E.2d 526 (1996). 



OPINIONS OF THE ATTORNEY GENERAL 



Editor's notes. — The following opinions 
were rendered under former Chapter 7 of 
this tide, relating to the powers and duties of 
the former Youthful Offender Division of 
the Department of Offender Rehabilitation 
(now Department of Corrections). See the 
editor's notes under the Chapter 7 heading. 



Classification as habitual offender for sen- 
tencing purposes. — An inmate sentenced 
under this chapter may also be classified as a 
habitual offender under § 42-5-100 for pur- 
poses of sentence computation. Further, in 
the rare case where a youthful offender is 
also classified as a habitual offender, 



233 



42-7-1 PENAL INSTITUTIONS 42-7-2 

earned-time adjustment for habitual offend- institution maintained primarily for youthful 

ers should be used in computing offender's offenders during the entire period for which 

unconditional release date. 1981 Op. Att'y the board is charged with custody over him, 

Gen. No. 81-62. since Ga. L. 1956, p. 161 (see § 42-5-50(b) 

Effect of revocation of offender's condi- and § 42-5-5 1(b), (d)) empowers the board 

tional release. — When a youthful offender's to assign inmates to any institution within its 

conditional release is revoked, and he is not system, and subsection (c) of former 

returned to the youthful offender program, § 42-7-8 authorizes the director (now com- 

his status as a youthful offender is termi- missioner) of corrections to segregate youth- 

nated and his sentence should be computed ml offenders from other prisoners. 1973 Op. 

on the basis of six years or the maximum Att'y Gen. No. 73-82. 

term for the offense, if less than six years. The notion of a judicially imposed mini- 

1975 Op. Att'y Gen. No. 75-127. mum term of confinement does not comport 

When a combination of youthful offender with the statutory scheme of this chapter. 
and standard sentences occur, the Youthful 1973 Op. Att'y Gen. No. 73-36. 
Offender Division may not approve a condi- Earning good-time credit. — Youthful of- 
tional or unconditional release for the de- fenders can earn good-time credit toward 
scribed youthful offender until his concur- the reduction of their period of confine- 
rent standard sentence has expired; ment to the extent provided in this chapter, 
nevertheless, he could be assigned to an 1975 Op. Att'y Gen. No. 75-50. 

RESEARCH REFERENCES 

ALR. — Sex discrimination in treatment 
of jail or prison inmates, 12 ALR4th 1219. 

42-7-1. Short tide. 

This chapter shall be known and may be cited as the "Georgia Youthful 
Offender Act of 1972." (Ga. L. 1972, p. 592, § 1; Ga. L. 1985, p. 420, § 1.) 

JUDICIAL DECISIONS 

Cited in Carrindine v. Ricketts, 236 Ga. Wilson v. State, 148 Ga. App. 368, 251 S.E.2d 
283, 223 S.E.2d 627 (1976); Crowley v. State, 387 (1978); Duncan v. State, 148 Ga. App. 
141 Ga. App. 867, 234 S.E.2d 700 (1977); 685, 252 S.E.2d 190 (1979). 

42-7-2. Definitions. 

As used in this chapter, the term: 

(1) "Board" means the Board of Corrections. 

(2) "Commissioner" means the commissioner of corrections. 

(3) "Conviction" means a judgment on a verdict or finding of guilty, 
a plea of guilty, or a plea of nolo contendere in a felony case but excludes 
all judgments upon criminal offenses for which the maximum punish- 
ment provided by law is death or life imprisonment. 

(4) "Court" means any court of competent jurisdiction other than a 
juvenile court. 

(5) "Department" means the Department of Corrections. 

234 



42-7-3 TREATMENT OF YOUTHFUL OFFENDERS 42-7-3 

(6) "Treatment" means corrective and preventative incarceration, 
guidance, and training designed to protect the public by correcting the 
antisocial tendencies of youthful offenders, which may include but is not 
limited to vocational, educational, and other training deemed fit and 
necessary by the department. 

(7) "Youthful offender" means any male offender who is at least 17 
but less than 25 years of age at the time of conviction and who in the 
opinion of the department has the potential and desire for rehabilitation. 
(Ga. L. 1972, p. 592, § 2; Ga. L. 1973, p. 581, § 1; Ga. L. 1975, p. 900, § 1; 
Ga. L. 1985, p. 420, § 1.) 

Code Commission notes. — Ga. L. 1985, Code section. Pursuant to Code Section 
p. 420 used the terms "Offender Rehabilita- 28-9-5, they have been changed to "Correc- 
tion" and "offender rehabilitation" in this dons" and "corrections." 

JUDICIAL DECISIONS 

Cited in White v. State, 137 Ga. App. 9,223 State, 148 Ga. App. 685, 252 S.E.2d 190 
S.E.2d 24 (1975); Carrindine v. Ricketts, 236 (1979). 
Ga. 283, 223 S.E.2d 627 (1976); Duncan v. 

42-7-3. Providing institutions and facilities. 

(a) Youthful offenders shall undergo treatment in secure institutions, 
including training schools, hospitals, farms, and forestry and other camps 
and including vocational training facilities and other institutions and 
agencies that will provide the essential varieties of treatment. 

(b) The commissioner may, to the extent necessary, set aside such 
facilities described in subsection (a) of this Code section as are necessary to 
carry out the purposes of this chapter. 

(c) To the extent possible, such institutions and facilities shall be used 
only for treatment of youthful offenders who have the potential and desire 
for rehabilitation as provided in this chapter. (Code 1981, § 42-7-3, enacted 
byGa. L. 1985, p. 420, § 1.) 

OPINIONS OF THE ATTORNEY GENERAL 

Editor's notes. — The following opinions basis of a six-year determinate sentence, or 

were rendered under former Chapter 7 of the maximum potential term for the offense 

this tide, relating to the powers and dimes of for which the offender was committed, 

the former Youthful Offender Division of whichever is less. 1975 Op. Att'y Gen. No. 

the Department of Offender Rehabilitation 75-50. 

(now Department of Corrections). See the When a combination of youthful offender 

editor's notes under the Chapter 7 heading, and standard sentences occur, the Youthful 

Youths transferred from the Department Offender Division may not approve a condi- 
of Human Resources enjoy a youthful of- tional or unconditional release for the de- 
fender status; a parole eligibility date should scribed youthful offender until his concur- 
be established for them, computed on the rent standard sentence has expired; 

235 



42-7-4 PENAL INSTITUTIONS 42-7-5 

nevertheless, he could be assigned to an the board to assign inmates to any institution 

institution maintained primarily for youthful within its system, and subsection (c) of this 

offenders during the entire period for which section authorizes the director (now com- 

the board is charged with custody over him, missioner) of corrections to segregate youth- 

since Code 1933, § 77-308 (b) (see ful offenders from other prisoners. 1973 Op. 

§8 42-5-50 (b), 42-5-51 (b), (d)) empowers Att'y Gen. No. 73-82. 

42-7-4. Studies and diagnoses; placement of youthful offender by depart- 
ment. 

(a) The commissioner shall cause to be made a complete study and 
diagnosis of each youthful offender, including a physical examination and, 
where possible and indicated, a mental examination. In the absence of 
exceptional circumstances, each study and diagnosis shall be completed 
within a period of 60 days from the date of commitment. 

(b) Upon the receipt of all reports and recommendations required by 
subsection (a) of this Code section, the department shall: 

(1) Allocate and direct a transfer of the youthful offender to an 
institution or facility for treatment; or 

(2) Order the youthful offender confined and afforded treatment 
under such conditions as are necessary for the protection of the public. 
(Code 1981, § 42-7-4, enacted by Ga. L. 1985, p. 420, § 1.) 

JUDICIAL DECISIONS 

Cited in Duncan v. State, 148 Ga. App. 
685, 252S.E.2d 190 (1979). 

OPINIONS OF THE ATTORNEY GENERAL 

Editor's notes. — The following opinion ful Offender Division receives the report and 
was rendered under former Chapter 7 of this recommendation of the director (now corn- 
title, relating to the powers and duties of the missioner) of corrections described in this 
former Youthful Offender Division of the section, the division, subject to final ap- 
Department of Offender Rehabilitation proval by the director (now commissioner), 
(now Department of Corrections). See the has the discretion to grant a conditional 
editor's notes under the Chapter 7 heading. release to the youthful offender who is the 

Receipt of report prerequisite to grant of subject of the report. 1973 Op. Att'y Gen. 

conditional release. — As soon as the Youth- No. 73-36. 

42-7-5. Transfer. 

The commissioner may order the transfer of the offender from one 
institution or facility to any other institution or facility operated by the 
department. (Code 1981, § 42-7-3, enacted by Ga. L. 1985, p. 420, § 1.) 

236 



42-7-6 TREATMENT OF YOUTHFUL OFFENDERS 

42-7-6. Notification of State Board of Pardons and Paroles. 



42-7-6 



After receipt of the reports and recommendations provided for by 
subsection (a) of Code Section 42-7-4 and the commissioner or his designee 
has determined whether or not an individual shall receive youthful offender 
treatment, the State Board of Pardons and Paroles shall be notified. (Code 
1981, § 42-7-6, enacted by Ga. L. 1985, p. 420, § 1.) 



JUDICIAL DECISIONS 



Editor's notes. — The following decisions 
were rendered under former Chapter 7 of 
this title, relating to the powers and duties of 
the former Youthful Offender Division of 
the Department of Offender Rehabilitation 
(now Department of Corrections). See the 
editor's notes under the Chapter 7 heading. 

Limiting duration of sentence. — Sentenc- 
ing court does not have authority to limit 



duration of sentence under this chapter to 
less than six years, and sentence for indefi- 
nite period not to exceed three years is 
therefore void. DeFrancis v. Thompson, 239 
Ga. 785, 239 S.E.2d 14 (1977). 

Cited in Duncan v. State, 148 Ga. App. 
685, 252 S.E.2d 190 (1979). 



OPINIONS OF THE ATTORNEY GENERAL 



Editor's notes. — The following opinions 
were rendered under former Chapter 7 of 
this tide, relating to the powers and duties of 
the former Youthful Offender Division of 
the Department of Offender Rehabilitation 
(now Department of Corrections). See the 
editor's notes under the Chapter 7 heading. 

Receipt of report prerequisite to grant of 
conditional release. — As soon as the Youth- 
ful Offender Division receives the report and 
recommendation of the director (now com- 
missioner) of corrections described in 
former § 42-7-9, the division, subject to final 
approval by the director (now commission- 
er), has the discretion to grant a conditional 
release to the youthful offender who is the 
subject of the report. 1973 Op. Att'y Gen. 
No. 73-36. 

Sentence which purports to order a mini- 
mum term of custody has no binding effect 
on the Youthful Offender Division; while the 
division should regard such language as an 
authoritative recommendation that it post- 
pone the conditional release of a particular 
youthful offender, the division may deal with 
that offender in accordance with its normal 
procedures. 1973 Op. Att'y Gen. No. 73-36. 

Complete discretion in granting a condi- 
tional or unconditional release is given to the 



administrators of this chapter within the 
time limits specified by this chapter. Lan- 
guage in a sentence which would either 
delay release for a stated period or order it 
to be granted within a shorter period than 
that described in former §§ 42-7-11 and 
42-7-13 would not be binding on the Youth- 
ful Offender Division, but would only have 
the effect of a recommendation; thus, an 
individual sentenced to serve one year un- 
der this chapter could lawfully remain in the 
physical custody of the division for a period 
greater or less than one year. 1973 Op. Att'y 
Gen. No. U73-60. 

Where sentence is expressly imposed un- 
der this chapter so that the person is sen- 
tenced to be confined in the Youthful Of- 
fender Division, language which specifies 
that the period of custody is not to exceed a 
period of two years, does not operate to limit 
the division's discretion over conditional 
and unconditional release. 1974 Op. Att'y 
Gen. No. 74-100. 

Any restrictive language in a youthful of- 
fenders sentence should be regarded as a 
compelling recommendation that the re- 
lease of the particular offender be approved 
within the time period specified in his sen- 
tence. 1974 Op. Att'y Gen. No. 74-100. 



237 



42-7-7 



PENAL INSTITUTIONS 



42-7-8 



42-7-7. Adoption of policies and procedures. 

The State Board of Pardons and Paroles shall adopt policies and 
procedures concerning individuals designated to receive youthful offender 
treatment. (Code 1981, § 42-7-7, enacted by Ga. L. 1985, p. 420, § 1.) 

42-7-8. Court recommendation of treatment as youthful offender. 

If a court finds that a youthful offender might benefit from this chapter, 
the court may recommend that a young offender be treated as a youthful 
offender by indicating the recommendation in writing in the sentence itself. 
When the judge has recommended in the sentence that a person be given 
youthful offender treatment, release may be made without regard to 
limitations placed upon the service of a portion of the prison sentence 
provided by Code Section 42-9-45. After the offender is evaluated, the 
department will make the decision concerning the placement of the 
offender. (Code 1981, § 42-7-8, enacted by Ga. L. 1985, p. 420, § L) 



Cross references. — Sentence and punish- 
ment generally, Ch. 10, T. 17. Punishment of 
misdemeanor first offenders between ages 
16 and 18. § 17-10-3(c). 



Law reviews. — For article on the effect of 
nolo contendere plea on conviction, see 13 
Ga. L. Rev. 723 (1979). 



JUDICIAL DECISIONS 



Editor's notes. — The following decisions 
were rendered under former Chapter 7 of 
this title, relating to the powers and duties of 
the former Youthful Offender Division of 
the Department of Offender Rehabilitation 
(now Department of Corrections). See the 
editor's notes under the Chapter 7 heading. 

Failure to sentence youth under this sec- 
tion. — Testimony that appellant had been 
drinking, cursing, wagering, and carrying an 
offensive weapon is sufficient evidence to 
show that the trial court did not abuse its 
discretion when it failed to sentence appel- 
lant under the Youthful Offender Act. 
Beasley v. State, 161 Ga. App. 737, 288 S.E.2d 
759 (1982). 

Limiting duration of sentence. — Sentenc- 
ing court does not have authority to limit 
duration of sentence under this chapter to 
less than six years and sentence for indefi- 
nite period not to exceed three years was 
therefore void. DeFrancis v. Thompson, 239 
Ga. 785, 239 S.E.2d 14 (1977). 



Finding of benefit to defendant. — It is 

not necessary for the trial court to make a 
specific affirmative finding before sentenc- 
ing that a defendant would receive "no 
benefit" under this chapter. Woods v. State, 
233 Ga. 347, 211 S.E.2d 300 (1974), appeal 
dismissed, 422 U.S. 1002, 95 S. Ct. 2623, 45 
L. Ed. 2d 667 (1975). 

Termination of custody by Department of 
Human Resources. — This section seems 
both to accept the view that the Department 
of Human Resources loses the right to cus- 
tody at age 17 and that the most suitable 
place of incarceration is in the Youthful 
Offender Division of the Department of 
Offender Rehabilitation (Corrections). 
Carrindine v. Ricketts, 236 Ga. 283, 223 
S.E.2d 627 (1976). 

Cited in England v. Bussiere, 237 Ga. 814, 
229 S.E.2d 655 (1976); Crowley v. State, 141 
Ga. App. 867, 234 S.E.2d 700 (1977); 
Duncan v. State. 148 Ga. App. 685 252 S.E.2d 
190 (1979). 



238 



42-7-9 



TREATMENT OF YOUTHFUL OFFENDERS 



42-7-9 



OPINIONS OF THE ATTORNEY GENERAL 



Editor's notes. — The following opinions 
were rendered under former Chapter 7 of 
this tide, relating to the powers and duties of 
the former Youthful Offender Division of 
the Department of Offender Rehabilitation 
(now Department of Corrections). See the 
editor's notes under the Chapter 7 heading. 

Discretion of division in computing length 
of incarceration. — An inmate sentenced 
under this chapter receives indeterminate 
sentence in custody of Youthful Offender 
Division of Department of Offender Reha- 
bilitation (Corrections). The division is ac- 
corded a great deal of discretion in comput- 
ing the length of time such an offender shall 
be incarcerated. 1981 Op. Att'y Gen. No. 
81-62. 

Transfer of and computation of offender's 
term of custody. — A 16-year-old originally 
committed to the Department of Human 
Resources may be transferred on his seven- 
teenth birthday to the Department of Cor- 
rections by order of the committing court 
under the provisions of this chapter; the 
offender's term of custody should be com- 
puted from the date of his original convic- 
tion. 1975 Op. Att'y Gen. No. 75-47. 

Effect of language order. — A court order 
transferring a 17-year-old to the custody of 



the Department of Corrections is merely a 
modification of the offender's sentence pur- 
suant to a prior judgment of conviction on a 
verdict of guilty; therefore, the offender's 
period of custody should be computed from 
the date of his original conviction. 1975 Op. 
Att'y Gen. No. 75-47. 

Requirement to commit as youthful of- 
fender. — Where a committing court has 
expressed its intention in writing to commit 
an individual as a youthful offender, he has 
been effectively transferred to the custody of 
the department under the provisions of this 
chapter. 1975 Op. Att'y Gen. No. 75-47. 

Placement of kidnapping offenders. — 
Kidnapping, not being punishable by death 
or imprisonment for life, is not an offense 
which requires the offender under 17 years 
of age to be placed in the sole custody of the 
Department of Offender Rehabilitation 
(Corrections); where the offender under 17 
years of age is convicted of kidnapping for 
ransom or kidnapping in which the victim 
receives bodily injury, both being offenses 
punishable by life imprisonment or death, 
he shall only be sentenced into the custody 
of the department. 1975 Op. Att'y Gen. No. 
75-73. 



42-7-9. Construction of chapter. 

(a) Nothing in this chapter shall limit or affect the power of any court to 
proceed in accordance with any other applicable provisions of law. 

(b) Nothing in this chapter shall be construed in any way to amend, 
repeal, or affect the jurisdiction of the juvenile court system of this state. 

(c) Nothing in this chapter shall be construed in any way to amend, 
repeal, or affect the jurisdiction of the State Board of Pardons and Paroles. 
A person sentenced under this chapter shall have his eligibility for parole 
computed in the same manner as other offenders sentenced to the 
jurisdiction of the department. (Code 1981, § 42-7-9, enacted by Ga. L. 

1985, p. 420, § 1.) 

Cross references. — Juvenile proceedings 
generally, Ch. 11, T. 15. 



239 



42-7-9 PENAL INSTITUTIONS 42-7-9 

JUDICIAL DECISIONS 

Cited in Woods v. State, 233 Ga. 347, 211 State, 161 Ga. App. 737, 288 S.E.2d 759 
S.E.2d 300 (1974); Duncan v. State, 148 Ga. (1982). 
App. 685, 252 S.E.2d 190 (1979); Beasley v. 

OPINIONS OF THE ATTORNEY GENERAL 

Editor's notes. — The following opinion offender by second court. — Subsection (a) 

was rendered under former Chapter 7 of this of this section could be read as implicitly 

tide, relating to the powers and duties of the recognizing the power of a second court to 

former Youthful Offender Division of the give a standard prison sentence to a person 

Department of Offender Rehabilitation who had previously been sentenced as a 

(now Department of Corrections). See the youthful offender. 1973 Op. Att'y Gen. No. 

editor's notes under the Chapter 7 heading. 73-82. 

Giving of standard sentence to previous 



240 



PROBATION 

CHAPTER 8 
PROBATION 



Sec. 
42-8-1. 

42-8-2. 



42-8-3. 



Article 1 
Advisory Council for Probation 

Creation; composition; selection 
of members; terms of office. 
Duty to consult and advise with 
Board and Department of Cor- 
rections; studies and surveys; rec- 
ommendations; policy changes; 
meetings. 

Staff director; reimbursement of 
members for expenses; operat- 
ing funds. 

Article 2 



State-wide Probation System 

42-8-20. Short title. 

42-8-21. Definitions. 

42-8-22. State-wide probation system cre- 
ated; administration generally. 

42-8-23. Administration of supervision of 
probationers by Department of 
Corrections. 

42-8-24. General duties of department; 
rules and regulations. 

42-8-25. Employment of probation super- 
visors; assignment to circuits by 
department. 

42-8-26. Qualifications of probation su- 
pervisors; compensation and ex- 
penses; conflicts of interest; 
bonds. 

42-8-27. Duties of probation supervisors. 

42-8-28. Assignment of probation super- 
visors among judicial circuits 
generally. 

42-8-29. Conduct of presentence investi- 
gations and preparation of re- 
ports of findings by probation 
supervisors; supervision of pro- 
bationers; maintenance of 
records relating to probationers. 

42-8-29. 1 . Disposition of probation supervi- 
sor's documents upon commit- 
ting of convicted person to insti- 
tution. 

42-8-30. Supervision of juvenile offenders 
by probation supervisors. 



Sec. 
42-8-30.1. 



42-8-31. 

42-8-32. 
42-8-33. 



42-8-34. 



42-8-34.1. 
42-8-34.2. 

42-8-35. 

42-8-35.1. 
42-8-35.2. 

42-8-35.3. 

42-8-35.4. 

42-8-35.5. 

42-8-35.6. 

42-8-36. 



Applicability to counties estab- 
lishing probation system pursu- 
ant to Code Section 42-8-100. 
Collection and disbursement of 
funds by probation supervisors; 
maintenance and inspection of 
records of accounts; bank ac- 
counts. 

Funds which may be collected by 
probation supervisors. 
Audits of accounts of probation 
supervisors; records and reports 
of audits; bonds of auditors; lim- 
itation on refunding overpay- 
ment of fines, restitutions, or 
moneys owed. 

Hearings and determinations; 
referral of cases to probation su- 
pervisors; probation or suspen- 
sion of sentence; payment of fine 
or costs; disposition of defendant 
prior to hearing; continuing ju- 
risdiction; transferral of proba- 
tion supervision; probation fee. 
Requirements for revocation of 
probated or suspended sentence; 
restitution or fines; limitation on 
probation supervision. 
Delinquency of defendant in 
payment of fines, costs, or resti- 
tution or reparation; costs of gar- 
nishment. 

Terms and conditions of proba- 
tion. 

Special alternative incarceration. 
Special term of probation; when 
imposed; revocation; suspension. 
Conditions of probation for 
stalking or aggravated stalking. 
Confinement in probation de- 
tention center. 

Confinement in probation diver- 
sion center. 

Family violence intervention 
program or counseling related to 
family violence as condition of 
probation. 

Duty of probationer to inform 
probation supervisor of resi- 



241 



PENAL INSTITUTIONS 



Sec. 

42-8-37. 

42-8-38. 



42-8-39. 
42-8-40. 

42-8-41. 
42-8-42. 

42-8-43. 
42-8-43.1. 

42-8-43.2. 

42-8-43.3. 



42-8-44. 

42-8-60. 

42-8-61. 

42-8-62. 
42-8-63. 

42-8-64. 
42-8-65. 



dence and whereabouts; viola- 
tions; unpaid moneys. 
Effect of termination of period 
of probation; review of cases of 
persons receiving probated sen- 
tence; reports. 

Arrest of probationer for viola- 
tion of terms of probation; hear- 
ing; disposition of charge; proce- 
dure where probation revoked in 
county other than that of convic- 
tion. 

Suspension of sentence does not 
place defendant on probation. 
Confidentiality of papers; ex- 
emption from subpoena; 
declassification. 

Cooperation of state and local 
entities with probation officials. 
Provision of office space and cler- 
ical help by department and 
counties. 

Effect of article on existing 
county probation systems. 
Participation in cost of county 
probation systems; merging of 
county systems into state system. 
Payments by state to county pro- 
bation systems; merger of county 
systems into state-wide system. 
Participation in cost of county 
probation systems in counties 
with population of 250,000 or 
more. 
Construction of article. 



Article 3 

Probation of First Offenders 

Probation prior to adjudication 
of guilt; violation of probation; 
review of criminal record by 
judge. 

Defendant to be informed of 
terms of article at time sentence 
imposed. 

Discharge of defendant without 
adjudication of guilt. 
Effect of discharge under article 
on eligibility for employment or 
appointment to office. 
Appeal of sentence imposed un- 
der article. 
Use of prior finding of guilt in 



Sec. 

subsequent prosecutions; release 
of records of discharge; modifi- 
cation of records to reflect con- 
viction; effect of confinement 
sentence where guilt not adjudi- 
cated. 

Article 4 

Participation of Probationers in 
Community Service Programs 

42-8-70. Definitions; unlawful to use of- 
fender for private gain except 
under certain circumstances; 
penalties. 

42-8-71. Application for participation in 
community service program; as- 
signment of offenders; violations 
of court orders or article; limita- 
tion of liability. 

42-8-72. Community service as condition 
of probation; determination of 
appropriateness of community 
service for particular offender; 
service as live-in attendant for 
disabled person; community ser- 
vice in lieu of incarceration; 
community service as discipline. 

42-8-73. Placement of offender with ap- 
propriate agency; scheduling for 
employed offenders; supervi- 
sion; evaluation. 

42-8-74. Applicability of Articles 2 and 3 
of chapter; awarding of 
good-time allowance for of- 
fender providing live-in commu- 
nity service. 

Article 5 
Pretrial Release and Diversion Programs 

42-8-80. Establishment and operation; 
rules and regulations. 

42-8-81. Release of person charged to 
program. 

42-8-82. Contracts with counties for ser- 
vices and facilities. 

42-8-83. Pretrial intervention programs. 

42-8-84. Approval required for release. 

Article 6 

Agreements for Probation Services 

42-8-100. Agreements between chief 
judges of county courts or judges 



242 



42-S-l 



PROBATION 



42-8-1 



Sec. 

of municipal courts and corpora- 
tions, enterprises, or agencies for 
probation services. 

42-8-1 01 . County and Municipal Probation 
Advisory Council. 

42-8-102. Uniform professional standards 
and uniform contract standards. 

42-8-103. Quarterly report to judge and 
council; records to be open for 
inspection. 

42-8-104. Conflicts of interests prohibited. 

42-8-105. Local government authority not 
affected. 

42-8-106. Confidentiality of records. 

42-8-107. Registration with council. 

42-8-108. Applicability of article to con- 
tractors for probation services; 
requirements for corporations, 
enterprises and agencies enter- 
ing into written contracts for ser- 
vices. 

Article 7 

Ignition Interlock Devices as Probation 
Condition 



42-8-110. 



42-8-111. 



Definitions; applicability; pur- 
chase or lease of ignition inter- 
lock devices by counties, munici- 
palities, or private entities; costs, 
fees and deposits. 
Court ordered installation of ig- 
nition interlock devices; notice 



Sec. 

to Department of Public Safety; 
fee for driver's license indicating 
device required. 

42-8-1 1 2. Proof of compliance required for 
reinstatement of certain drivers' 
licenses and for obtaining proba- 
tionary license; reporting re- 
quirement. 

42-8-113. Renting, leasing, or lending mo- 
tor vehicle to probationer sub- 
ject to this article prohibited. 

42-8-1 14. Exception where probationer re- 
quired to operate motor vehicle 
owned by employer. 

42-8-115. Certification of ignition inter- 
lock devices. 

42-8-1 1 6. Warning labels. 

42-8-117. Revocation of driving privilege 
upon violation of probation im- 
posed by Code Section 42-8-111. 

42-8-118. Requesting or soliciting another 
to blow into device; tampering 
with or circumventing operation 
of device. 

Article 8 

Diversion Center and Program 

42-8-130. Establishment; obligations of re- 
spondent; confinement; fee; al- 
ternative methods of incarcera- 
tion. 



Law reviews. — For article, "A Review of 
Georgia's Probation Laws," see 6 Ga. St. B.J. 
255 (1970). 



RESEARCH REFERENCES 

ALR. — Right of convicted defendant to 
refuse probation, 28 ALR4th 736. 

ARTICLE 1 
ADVISORY COUNCIL FOR PROBATION 

42-8-1. Creation; composition; selection of members; terms of office. 

There is created the Advisory Council for Probation, to be composed of 
one superior court judge from each of the judicial administrative districts. 



243 



42-8-2 PENAL INSTITUTIONS 42-8-3 

The district council for each judicial administrative district shall select a 
superior court judge who shall be each respective district's member of the 
council. The initial terms of office of the council members shall be as 
follows: Districts 1 through 3, one year; Districts 4 through 6, two years; 
Districts 7 through 10, three years. Thereafter, all successors to the initial 
members of the council shall serve for terms of office of three years. 
Members of the advisory council shall be selected by the district councils, 
meeting in caucus called for such purpose by the administrative judge of 
each district. (Ga. L. 1980, p. 400, § 1.) 

42-8-2. Duty to consult and advise with Board and Department of Correc- 
tions; studies and surveys; recommendations; policy changes; meet- 
ings. 

The Advisory Council for Probation shall meet, consult, and advise with 
the Board of Corrections and the Department of Corrections on questions 
and matters of mutual concern and interest relative to policy, personnel, 
and budget which pertain to probationary activities, powers, duties, and 
responsibilities of the board and the department. The advisory council shall 
institute such studies and surveys and shall make such recommendations to 
the board and department as the council deems wise and necessary and 
which, in the opinion of the council, will improve the effectiveness and 
efficiency of probation services rendered throughout the state. No change 
in existing policy of the board or the department relative to probation, if 
the magnitude of the change will result in a significant impact upon 
state-wide probationary services, or any such new policy, shall be instituted 
by the board or department without opportunity being afforded to the 
advisory council to advise and consult with the board or department on the 
proposed changes. However, the recommendations of the advisory council 
shall be advisory only and shall not bind the board or department. The 
board, the department, and the council shall meet periodically throughout 
each year for the purpose of improving the administration, efficiency, and 
effectiveness of probation services. (Ga. L. 1980, p. 400, § 2; Ga. L. 1985, p. 
283, § 1.) 

42-8-3. Staff director; reimbursement of members for expenses; operating 
funds. 

The Advisory Council for Probation is authorized to employ and fix the 
compensation of a staff director, subject to the appropriation of funds for 
this position, who shall be responsible to the council and who shall 
discharge such duties and assignments as shall be assigned to him by the 
council. Members of the council shall be reimbursed for their actual 
expenses incurred in connection with the activities and responsibilities of 
the council. The funds necessary to meet the expenses of the council shall 
be met from funds appropriated to or otherwise available for the operation 
of the superior courts. (Ga. L. 1980, p. 400, § 3.) 

244 



42-8-20 probation 42-8-22 

Law reviews. — For article, "An Analysis 
of Georgia's Proposed Rules of Evidence," 
see26Ga. St. BJ. 173 (1990). 

ARTICLE 2 
STATE-WIDE PROBATION SYSTEM 

JUDICIAL DECISIONS 

Construction. — The state-wide probation defendant. Helton v. State, 166 Ga. App. 565, 
system is strictly construed in favor of a 305 S.E.2d 27 (1983). 

RESEARCH REFERENCES 

ALR. — Revocation of probation based on ment of information from trial court, 36 
defendant's misrepresentation or conceal- ALR4th 1182. 

42-8-20. Short tide. 

This article shall be known and may be cited as the "State-wide Probation 
Act." (Ga. L. 1956, p. 27, § 1.) 

JUDICIAL DECISIONS 

Exclusion of certain offenses. — Offenses this ardcle. Brown v. State, 246 Ga. 251, 271 
punishable by death or life imprisonment S.E.2d 163 (1980). 
are expressly omitted from the provisions of 

42-8-21. Definitions. 

As used in this article, the term: 

(1) "Board" means the Board of Corrections. 

(2) "Commissioner" means the commissioner of corrections. 

(3) "Department" means the Department of Corrections. (Code 
1981, § 42-8-21; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1.) 

Editor's notes. — This Code section was thus enacted by Ga. L. 1981, Ex. Sess., p. 8 
created as part of the Code revision and was (Code Enactment Act). 

42-8-22. State-wide probation system created; administration generally. 

There is created a state-wide probation system to be administered by the 
Department of Corrections. The probation system shall not be adminis- 
tered as part of the duties and activities of the State Board of Pardons and 
Paroles. Separate files and records shall be kept with relation to the system. 
(Ga. L. 1956, p. 27, § 2; Ga. L. 1958, p. 15, § 1; Ga. L. 1962, p. 16, § 1; Ga. 
L. 1966, p. 56, § 1; Ga. L. 1985, p. 283, § 1.) 

245 



42-8-23 PENAL INSTITUTIONS 42-8-23 

Editor's notes. — Ga. L,. 1972, p. 1069, Board of Corrections) and that the adminis- 

§13, provides that the policy-making func- trative functions be vested in the Depart- 

tions of the probation system be vested in men t of Offender Rehabilitation (now De- 

the Board of Offender Rehabilitation (now partment of Corrections) . 

JUDICIAL DECISIONS 

Cited in Vandiver v. Manning, 215 Ga. 874, 
114 S.E.2d 121 (1960); Knowles v. State, 159 
Ga. App. 239, 283 S.E.2d 51 (1981). 

OPINIONS OF THE ATTORNEY GENERAL 

Not administered as part of State Board system shall not be administered as part of 

of Pardons and Paroles. — Whatever right, if the duties and activities of the Board of 

any, the State Board of Pardons and Paroles Pardons and Paroles." 1958-59 Op. Att'y 

may have had to require waiver of extradi- Gen. p. 223. 

tion by probationers under Ga. L. 1943, p. Board's functions are separate and dis- 

185 (now Ch. 9 of this title), it is clear that it tinct from those of the Department of Cor- 

retains no such right under this article, for rections' Probation Division. 1986 Op. Att'y 

this section provides that "such probation Gen. No. 86-7. 

RESEARCH REFERENCES 

Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal C.J.S. — 24 C.J.S., Criminal Law, 

Law, §§ 567-579. 59 Am. Jur. 2d, Pardon and §§ 1559-1568. 67 C.J.S., Officers, §§ 219, 

Parole, § 76. 63A Am.Jur. 2d, Public Offic- 224, 226. 67A C.J.S., Pardon and Parole, 

ers and Employees, §§ 21, 36, 37, 40, 44, 52, §§ 41, 42. 73 C.J.S., Public Administrative 

56, 431-433, 448-453, 461. Law and Procedure, §§ 8, 20, 21. 

42-8-23. Administration of supervision of probationers by Department of 
Corrections. 

The department shall administer the supervision of probationers. Noth- 
ing in this Code section shall alter the relationship between judges and 
probation supervisors prescribed in this article. (Ga. L. 1972, p. 1069, § 14; 
Ga. L. 1977, p. 1209, § 2; Ga. L. 1978, p. 1647, § 3.) 

OPINIONS OF THE ATTORNEY GENERAL 

State Board of Pardons and Paroles re- of Pardons and Paroles retains its 

tains quasi-judicial functions and powers. — quasi-judicial functions and powers as a re- 

Except for the supervision of parolees and suit of the Executive Reorganization Act of 

the assignment to the Department of Of- 1972 (Ga. L. 1972, p. 1015, § 3). 1975 Op. 

fender Rehabilitation (Corrections) for ad- Att'y Gen. No. 75-72. 
ministrative purposes only, the State Board 

RESEARCH REFERENCES 

ALR. — Probation officer's liability for 
negligent supervision of probationer, 44 
ALR4th 638. 

246 



42-8-24 PROBATION 42-8-25 

42-8-24. General duties of department; rules and regulations. 

It shall be the duty of the department to supervise and direct the work of 
the probation supervisors provided for in Code Section 42-8-25 and to keep 
accurate files and records on all probation cases and persons on probation. 
It shall be the duty of the board to promulgate rules and regulations 
necessary to effectuate the purposes of this chapter. (Ga. L. 1956, p. 27, § 4; 
Ga. L. 1958, p. 15, § 4; Ga. L. 1967, p. 86, § 3; Ga. L. 1969, p. 945, § 1; Ga. 
L. 1972, p. 604, § 3.) 

JUDICIAL DECISIONS 

Cited in Wright v. State, 88 Ga. App. 868, 
78 S.E.2d 61 (1953); Vandiver v. Manning, 
215 Ga. 874, 114 S.E.2d 121 (1960). 

RESEARCH REFERENCES 

C.J.S. — 73 C.J.S., Public Administrative 
Law and Procedure, § 87 et seq. 

42-8-25. Employment of probation supervisors; assignment to circuits by 
department. 

The department shall employ probation supervisors. The department 
may assign one supervisor to each judicial circuit in this state or, for 
purposes of assignment, may consolidate two or more judicial circuits and 
assign one supervisor thereto. In the event the department determines that 
more than one supervisor is needed for a particular circuit, an additional 
supervisor or additional supervisors may be assigned to the circuit. The 
department is authorized to direct any probation supervisor to assist any 
other probation supervisor wherever assigned. In the event that more than 
one supervisor is assigned to the same office or to the same division within 
a particular judicial circuit, the department shall designate one of the 
supervisors to be in charge. (Ga. L. 1956, p. 27, § 5; Ga. L. 1958, p. 15, § 5; 
Ga. L. 1965, p. 413, § 1; Ga. L. 1972, p. 604, § 4.) 

Cross references. — Appointment of pro- 
bation officers by courts in juvenile proceed- 
ings^ 15-11-7. 

JUDICIAL DECISIONS 

Cited in Knowles v. State, 159 Ga. App. 
239, 283S.E.2d51 (1981). 



247 



42-8-26 PENAL INSTITUTIONS 42-8-26 

OPINIONS OF THE ATTORNEY GENERAL 

Circuit probation officers (now probation The chairman of a county board of commis- 
supervisors) are public officers and as a sioners may be employed as a full-time pro- 
consequence hold office at the pleasure of bation officer by the Board of Probation 
the appointing power. 1968 Op. Att'y Gen. (now Department of Corrections). 1968 Op. 
No. 68-461. Att'y Gen. No. 68-21. 

Chairman as full-time probation officer. — 

42-8-26. Qualifications of probation supervisors; compensation and ex- 
penses; conflicts of interest; bonds. 

(a) In order for a person to hold the office of probation supervisor, he 
must be at least 21 years of age at the time of appointment and must have 
completed a standard two-year college course, provided that any person 
who is employed as a probation supervisor on or before July 1, 1972, shall 
not be required to meet the educational requirements specified in this 
Code section, nor shall he be prejudiced in any way for not possessing the 
requirements. The qualifications provided in this Code section are the 
minimum qualifications and the department is authorized to prescribe such 
additional and higher educational qualifications from time to time as it 
deems desirable, but not to exceed a four-year standard college course. 

(b) The compensation of the probation supervisors shall be set by the 
State Personnel Board and the State Merit System of Personnel Adminis- 
tration. Probation supervisors shall also be allowed travel and other 
expenses as are other state employees. 

(c) (1) No supervisor shall engage in any other employment, business, 
or activities which interfere or conflict with his or her duties and 
responsibilities as probation supervisor. 

(2) No supervisor shall own, operate, have any financial interest in, be 
an instructor at, or be employed by any private entity which provides drug 
or alcohol education services or offers a DUI Alcohol or Drug Use Risk 
Reduction Program certified by the Department of Human Resources. 

(3) No supervisor shall specify, directly or indirecdy, a particular DUI 
Alcohol or Drug Use Risk Reduction Program which a probationer may 
or shall attend. This paragraph shall not prohibit any supervisor from 
furnishing any probationer, upon request, the names of certified DUI 
Alcohol or Drug Use Risk Reduction Programs. Any supervisor violating 
this paragraph shall be guilty of a misdemeanor. 

(d) Each probation supervisor shall give bond in such amount as may be 
fixed by the department payable to the department for the use of the 
person or persons damaged by his misfeasance or malfeasance and condi- 
tioned on the faithful performance of his duties. The cost of the bond shall 
be paid by the department; provided, however, that the bond may be 
procured, either by the department or by the Department of Administrative 

248 



42-8-27 PROBATION 42-8-27 

Services, under a master policy or on a group blanket coverage basis, where 
only the number of positions in each judicial circuit and the amount of 
coverage for each position are listed in a schedule attached to the bond; and 
in such case each individual shall be fully bonded and bound as principal, 
together with the surety, by virtue of his holding the position or performing 
the duties of probation supervisor in the circuit or circuits, and his 
individual signature shall not be necessary for such bond to be valid in 
accordance with all the laws of this state. The bond or bonds shall be made 
payable to the department. (Ga. L. 1956, p. 27, § 6; Ga. L. 1958, p. 15, § 6; 
Ga. L. 1960, p. 1092, § 1; Ga. L. 1965, p. 413, § 2; Ga. L. 1967, p. 86, § 4; 
Ga. L. 1972, p. 604, § 5; Ga. L. 1991, p. 94, § 42; Ga. L. 1992, p. 3221, § 4; 
Ga. L. 1996, p. 1107, § 1.) 

The 1996 amendment, effective April 15, "or her" in that paragraph, and added para- 
1996, in subsection (c), designated the exist- graphs (2) and (3). 
ing provisions as paragraph ( 1 ) and inserted 

OPINIONS OF THE ATTORNEY GENERAL 

Circuit probation officers (now probation ing in the classified service of the State Merit 
supervisors) are public officers and as a System beyond that authorized in the corn- 
consequence hold office at the pleasure of pensation plan established by the State Per- 
the appointing power. 1968 Op. Att'y Gen. sonnel Board. 1989 Op. Att'y Gen. 89-39. 
No. 68-461. Owning or instructing in driver improve- 

Compensation of probation personnel un- ment school. — If a state probation officer is 

der the State Merit System. — No compen- an owner of or instructor in a driver im- 

sation can be paid to any probation super vi- provement school approved pursuant to 

sor or other probation personnel employed § 40-5-83, a conflict of interest arises. 1984 

by the Department of Corrections and serv- Op. Att'y Gen. No. U84-29. 

RESEARCH REFERENCES 

Am. Jut. 2d. — 63A Am. Jur. 2d, Public C.J.S.' — 67 C.J.S., Officers, §§ 7, 15-20, 
Officers and Employees, §§ 14, 36, 37, 39, 219, 223-226. 
40, 44, 45, 52, 56, 64-66, 68-78, 80-86, 
431-434, 448453, 461, 487 et seq. 

42-8-27. Duties of probation supervisors. 

The probation supervisor shall supervise and counsel probationers in the 
judicial circuit to which he is assigned. Each supervisor shall perform the 
duties prescribed in this chapter and such duties as are prescribed by the 
department and shall keep such records and files and make such reports as 
are required of him. (Ga. L. 1956, p. 27, § 7; Ga. L. 1958, p. 15, § 7; Ga. L. 
1972, p. 604, § 6.) 



Cross references. — Applicability of this 
state's correction laws to probationers found 
in other states, Ch. 11 of this tide. 



249 



42-8-28 PENAL INSTITUTIONS 42-8-29 

JUDICIAL DECISIONS 

Extraterritorial effect. — This section is of to revision by Ga. L. 1956, p. 27, § 7). 

no effect in State of Alabama. Roberts v. Cited in Stephens v. State, 245 Ga. 835, 

Lowry, 160 Ga. 494, 128 S.E. 746 (1925) 268 S.E.2d 330 (1980). 
(decided under Code 1933, § 27-2704, prior 

OPINIONS OF THE ATTORNEY GENERAL 

Probation supervisors as public officers, consequence hold office at the pleasure of 
— Circuit probation officers (now probation the appointing power. 1968 Op. Att'y Gen. 
supervisors) are public officers and as a No. 68-461. 

42-8-28. Assignment of probation supervisors among judicial circuits gen- 
erally. 

Probation supervisors shall be assigned among the respective judicial 
circuits based generally on the relative number of persons on probation in 
each circuit. (Ga. L. 1972, p. 604, § 15A.) 

RESEARCH REFERENCES 

Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal §§1549-1568. 24B C.J.S., Criminal Law, 
Law, §§ 567-579. § 1983. 

C.J.S. — 24 C.J.S., Criminal Law, 

42-8-29. Conduct of presentence investigations and preparation of reports 
of findings by probation supervisors; supervision of probationers; 
maintenance of records relating to probationers. 

It shall be the duty of the probation supervisor to investigate all cases 
referred to him by the court and to make his findings and report thereon 
in writing to the court with his recommendation. The superior court may 
require, before imposition of sentence, a presentence investigation and 
written report in each felony case in which the defendant has entered a plea 
of guilty or nolo contendere or has been convicted. The probation 
supervisor shall cause to be delivered to each person placed on probation 
under his supervision a certified copy of the terms of probation and any 
change or modification thereof and shall cause the person to be instructed 
regarding the same. He shall keep informed concerning the conduct, 
habits, associates, employment, recreation, and whereabouts of the proba- 
tioner by visits, by requiring reports, or in other ways. He shall make such 
reports in writing or otherwise as the court may require. He shall use all 
practicable and proper methods to aid and encourage persons on proba- 
tion and to bring about improvements in their conduct and condition. He 
shall keep records on each probationer referred to him. (Ga. L. 1956, p. 27, 
§ 9; Ga. L. 1972, p. 604, § 8.) 

250 



42-8-29 



PROBATION 



42-8-29 



Cross references. — Applicability of this 
state's correction laws to probationers' 
found in other states, Ch. 11 of this title. 



Law reviews. — For article, "A Review of 
Georgia's Probation Laws," see 6 Ga. St. B.J. 
255 (1970). 



JUDICIAL DECISIONS 



Analysis 



General Consideration 

Presentence Investigation and Report 

1. Use 

2. Revealing Contents to Counsel 

3. Presentence and Post-sentence 
Probationers' Certified Copy of Sentence 



General Consideration 

Extraterritorial effect. — This section is of 
no effect in State of Alabama. Roberts v. 
Lowry, 160 Ga. 494, 128 S.E. 746 (1925). 

Cited in Van Voltenburg v. State, 138 Ga. 
App. 628, 227 S.E.2d 451 (1976); Palmer v. 
State, 144 Ga. App. 480, 241 S.E.2d 597 
(1978); Martin v. State, 145 Ga. App. 880, 
245 S.E.2d 70 (1978); Huff v. McLarty, 241 
Ga. 442, 246 S.E.2d 302 (1978); Bennett v. 
State, 164 Ga. App. 239, 296 S.E.2d 787 
(1982) ; Jones v. State, 165 Ga. App. 180, 300 
S.E.2d534 (1983). 

Presentence Investigation and Report 

1. Use 

Use of report under § 42-8-34 in fixing 
sentence. — The information in the report 
filed under § 42-8-34 cannot be regarded as 
"evidence" either in aggravation or in miti- 
gation. Threatt v. State, 156 Ga. App. 345, 
274S.E.2d734 (1980). 

The trial court is authorized under this 
section and § 42-8-34 to consider investiga- 
tive reports prepared by probation officers 
for the purpose of deciding whether to 
suspend or probate all or part of the defen- 
dant's sentence, but the court cannot use 
the reports to determine the length of the 
sentence. Williams v. State, 165 Ga. App. 553, 
301 S.E.2d908 (1983). 

The presentence investigation report of 
§ 42-8-34 cannot be used in aggravation in 
fixing the length of the sentence. Mills v. 
State, 244 Ga. 186, 259 S.E.2d 445 (1979). 

A probation report cannot be offered in 
aggravation of sentence, regardless of 
whether it lists prior offenses. McDuffie v. 
Jones, 248 Ga. 544, 283 S.E.2d 601 (1981). 



Use of report under § 17-10-2 in fixing 
sentence. — Presentence report under 
§ 17-10-2 may be used as evidence in aggra- 
vation, thereby affecting the length of sen- 
tence, only if it had been made known to the 
defendant prior to his trial. However, under 
§ 42-8-34 a presentence report is also autho- 
rized before pronouncing sentence for the 
purpose of deciding whether to suspend or 
probate all or part of the sentence to be 
imposed in a case. Threatt v. State, 156 Ga. 
App. 345, 274 S.E.2d 734 (1980). 

If the presentence report is used to deter- 
mine length of sentence, the procedure set 
forth in § 17-10-2 must be followed; but if 
the report is used only to determine whether 
to probate or suspend all or a portion of the 
sentence, it could be used. Threatt v. State, 
156 Ga. App. 345, 274 S.E.2d 734 (1980). 

A probation report cannot be offered in 
aggravation of sentence, regardless of 
whether it lists prior offenses. McDuffie v. 
Jones, 248 Ga. 544, 283 S.E.2d 601 (1981). 

Use of previously undisclosed report. — 
Although use of a previously undisclosed 
probation report to aid the trial judge in 
determining whether to suspend or probate 
a sentence does not invalidate the sentence 
which is imposed, it cannot be used in fixing 
the length of the sentence. McDuffie v. 
Jones, 248 Ga. 544, 283 S.E.2d 601 (1981). 

2. Revealing Contents to Counsel 

Judge's discretion to reveal content of 
report to counsel. — Since this section does 
not require the content of a presentence 
probation report to be shared with counsel, 
it is in the sound discretion of the trial judge 
whether to reveal the content of the report 
to counsel for the accused and for the state. 



251 



42-8-29 



PENAL INSTITUTIONS 



42-8-29 



Presentence Investigation and 

Report (Cont'd) 
2. Revealing Contents to Counsel (Cont'd) 

Benefield v. State, 140 Ga. App. 727, 232 
S.E.2d89 (1976); Watts v. State, 141 Ga. App. 
127, 232 S.E.2d 590, cert, denied, 434 U.S. 
925, 98 S. Ct. 405, 54 L. Ed. 2d 283 (1977); 
Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 
(1978); Almon v. State, 151 Ga. App. 863, 
261 S.E.2d 772 (1979), cert, denied, 446 U.S. 
910, 100 S. Ct. 1839, 64 L. Ed. 2d 263 (1980). 
Disclosure of report containing adverse 
matters. — Where a presentence report con- 
tains any matter adverse to defendant and 
likely to influence decision to suspend or 
probate the sentence, it should be revealed 
to defense counsel by the trial judge in 
advance of the presentence hearing to give 
the accused an opportunity for explanation 
or rebuttal. Dorsey v. Willis, 242 Ga. 316, 249 
S.E.2d 28 (1978); Almon v. State, 151 Ga. 
App. 863, 261 S.E.2d 772 (1979), cert, de- 
nied, 446 U.S. 910, 100 S. Ct. 1839, 64 L. Ed. 
2d 263 (1980). 

3. Presentence and Post-sentence 

Utility of labeling report as post-sentence 
or presentence. — Labeling an investigative 
report of the probation department as a 
"post-sentence" report, as distinguished 
from a "presentence" report, will not 
change its legal effect where the content, 
purpose, and function of the report are the 
same. Threatt v. State, 156 Ga. App. 345, 274 
S.E.2d734 (1980). 

The trial court may not do indirecdy — 
with a "post-sentence" report, that which 
Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 
(1975) proscribes directly — using a 
'presentence' report to determine length of 
sentence. Threatt v. State, 156 Ga. App. 345, 
274S.E.2d734 (1980). 

Utilizing later report to determine final 
length of sentence. — The trial court erred 
in imposing the maximum sentence with the 
intent of utilizing a later report to determine 
the final length of sentence. Threatt v. State, 
156 Ga. App. 345, 274 S.E.2d 734 (1980). 



"Presentence" and "post-sentence'* re- 
ports. — There is no discernible difference 
between a "presentence" and "post- 
sentence" report, except as to time of sub- 
mission, and this is of no import where each 
is used for the same purpose. Thus, it is 
permissible to use a "presentence" or 
"post-sentence" report for the purpose of 
deciding whether to suspend or probate all 
or some part of a sentence. For the same 
reason it is impermissible to use a 
"presentence" or "post-sentence" report in 
fixing the length of the sentence. Threatt v. 
State, 156 Ga. App. 345, 274 S.E.2d 734 
(1980). 

Use of "post-sentence" report to deter- 
mine sentence. — Where the trial court 
intended to use the "post-sentence" report 
to determine the final length of the sen- 
tence, it is implicit that the trial court im- 
posed the original sentence with the intent 
of determining a final length of sentence 
only after viewing the "post-sentence" inves- 
tigative report. In such instance, Munford v. 
State, 235 Ga. 38, 218 S.E.2d 792 (1975) and 
Mills v. State, 244 Ga. 186, 259 S.E.2d 445 
(1979) proscribe the use of the reports to 
determine "length" of sentence without 
compliance with the provisions of § 17-10-2. 
Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 
734 (1980). 

Probationers' Certified Copy of Sentence 

Purpose of giving probationers certified 
copy of sentence. — The purpose of the 
provision of this section which requires the 
circuit probation officers to give the proba- 
tioners a certified copy of the sentence is to 
ensure that each probationer is familiar with 
the terms of his sentence. Poss v. State, 114 
Ga. App. 609, 152 S.E.2d 695 (1966). 

When failure to furnish certified copy not 
violative of sentence. — Where the defen- 
dant is admittedly familiar with the terms of 
his sentence, the failure of the circuit proba- 
tion officer to furnish him with a certified 
copy of his sentence as required by this 
section does not violate the terms of the 
sentence. Poss v. State, 114 Ga. App. 609, 152 
S.E.2d 695 (1966). 



RESEARCH REFERENCES 



Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal 
Law, §§ 527, 567-579. 



C.J.S. — 24 C.J.S. 
§§ 1549-1568. 



Criminal Law, 



252 



42-8-29.1 probation 42-8-30 

ALR. — Right of convicted defendant or report at sentencing proceedings, 22 
prosecution to receive updated presentence ALR5th 660. 

42-8-29.1. Disposition of probation supervisor's documents upon commit- 
ting of convicted person to institution. 

(a) When a convicted person is committed to an institution under the 
jurisdiction of the department, any presentence or post-sentence investiga- 
tion or psychological evaluation compiled by a probation supervisor or 
other probation official shall be forwarded to any division or office 
designated by the commissioner. Accompanying this document or evalua- 
tion will be the case history form and the criminal history sheets from the 
Federal Bureau of Investigation or the Georgia Crime Information Center, 
if available, unless any such information has previously been sent to the 
department pursuant to Code Section 42-5-50. A copy of these same 
documents shall be made available for the State Board of Pardons and 
Paroles. A copy of one or more of these documents, based on need, may be 
forwarded to another institution to which the defendant may be commit- 
ted. 

(b) The prison or institution receiving these documents shall maintain 
the confidentiality of the documents and the information contained 
therein and shall not send them or release them or reveal them to any other 
person, institution, or agency without the express consent of the probation 
unit which originated or accumulated the documents. (Code 1981, 
§ 42-8-29.1, enacted by Ga. L. 1983, p. 697, § 1; Ga. L. 1984, p. 22, § 42; Ga. 
L. 1989, p. 14, § 42.) 

42-8-30. Supervision of juvenile offenders by probation supervisors. 

In the counties where no juvenile probation system exists, juvenile 
offenders, upon direction of the court, shall be supervised by probation 
supervisors. Other than in this respect, nothing in this article shall be 
construed to change or modify any law relative to probation as administered 
by any juvenile court in this state. (Ga. L. 1956, p. 27, § 16; Ga. L. 1972, p. 
604, § 12.) 

Cross references. — Applicability of this 
state's correction laws to probationers' 
found in other states, Ch. 11 of this title. 

JUDICIAL DECISIONS 

Extraterritorial effect. — This section is of Cited in P.R. v. State, 133 Ga. App. 346, 
no effect in State of Alabama. Roberts v. 210 S.E.2d 839 (1974). 
Lowry, 160 Ga. 494, 128 S.E. 746 (1925). 



253 



42-8-30.1 PENAL INSTITUTIONS 42-8-31 

RESEARCH REFERENCES 

Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal C.J.S. — 24 C.J.S., Criminal Law, 
Law, §§ 567-579. 47 Am. Jur. 2d, Juvenile §§ 15494568. 43 C.J.S., Infants, §§■ 6-8. 
Courts and Delinquent and Dependent Chil- 
dren, §§ 1-70. 

42-8-30.1. Applicability to counties establishing probation system pursuant 
to Code Section 42-8-100. 

In any county where the judge of the probate court or chief magistrate of 
the magistrate court has provided for probation services for either or both 
of such courts through agreement with a private corporation, enterprise* or 
agency or has established a county probation system for either or both of 
such courts pursuant to Code Section 42-8-100, the provisions of this article 
relating to probation supervision services shall not apply to defendants 
sentenced in any such court. (Code 1981, § 42-8-30.1, enacted by Ga. L. 
1991, p. 1135, § 1; Ga. L. 1993, p. 91, § 42.) 

42-8-31. Collection and disbursement of funds by probation supervisors; 
maintenance and inspection of records of accounts; bank ac- 
counts. 

No probation supervisor shall collect or disburse any funds whatsoever, 
except by written order of the court; and it shall be the duty of the 
supervisor to transmit a copy of the order to the department not later than 
15 days after it has been issued by the court. Every supervisor who collects 
or disburses any funds whatsoever shall faithfully keep the records of 
accounts as are required by the department, which records shall be subject 
to inspection by the department at any time. In every instance where a bank 
account is required, it shall be kept in the name of the "State Probation 
Office." (Ga. L. 1960, p. 1092, § 4; Ga. L. 1972, p. 604, § 15.) 

Cross references. — Applicability of this 
state's correction laws to probationers' 
found in other states, Ch. 11 of this title, 

JUDICIAL DECISIONS 

Extraterritorial effect. — This section is of 
no effect in State of Alabama. Roberts v. 
Lowry, 160 Ga. 494, 128 S.E. 746 (1925). 

OPINIONS OF THE ATTORNEY GENERAL 

Collection of supervision fee by depart- initiative collect supervision fee from proba- 
ment. — Department of Offender Rehabili- tioners. 1981 Op. Att'y Gen. No. 81-100. 
tation (Corrections) may not on its own Collection of funds by probation office 

254 



42-8-32 



PROBATION 



42-8-32 



employees. — The Department of Offender 
Rehabilitation (Corrections) may not enter 
into an arrangement with the Department of 
Human Resources in which employees of 
local probation offices, other than probation 
supervisors, may collect child support recov- 
ery unit money which arises from civil pro- 
ceedings brought by the Department of Hu- 
man Resources on behalf of errant fathers. 
1982 Op. Att'y Gen. No. 82-99. 

Payment of supervision fee by proba- 
tioner. — Probationer's agreement to pay 
supervision fee should be obtained at time 
of sentencing and should be recorded. But, 
regardless of whether probationer agrees, he 
can be required to pay reasonable supervi- 
sion fee as condition of probation. 1981 Op. 
Att'y Gen. No. 81-100. 

Retention of fee. — Probation supervi- 
sion fee, collected pursuant to probation 
order of sentencing court, does not have a 
statutory premise. Therefore, such a fee 
does not have to be paid into state treasury 
but, if permitted by probation order, could 
be retained by Department of Offender Re- 
habilitation (Corrections). 1981 Op. Att'y 
Gen. No. 81-100. 



Authority to collect payments of fines and 
restitution. — The collection and disburse- 
ment of payments of fines and restitution as 
may be established as conditions upon the 
grant of parole may be undertaken by pro- 
bation supervisors employed by the Depart- 
ment of Offender Rehabilitation (Correc- 
tions) so long as such payments are 
specifically required by court order as the 
result of a criminal proceeding. 1984 Op. 
Att'y Gen. No. 84-50. 

Probation supervisors employed by the 
Probation Division of the Georgia Depart- 
ment of Corrections may collect voluntary 
payments of court-ordered fines and restitu- 
tion after the expiration of periods of pro- 
bation. 1987 Op. Att'y Gen. No. 87-10. 

Withholding "collection fee" from fines. 
— Since expenses of Department of Of- 
fender Rehabilitation (Corrections) in su- 
pervising probationers are not a proper cost 
of prosecution, the department cannot with- 
hold "collection fee" to offset these costs 
from fines which it collects. 1981 Op. Att'y 
Gen. No. 81-100. 



42-8-32. Funds which may be collected by probation supervisors. 



No probation supervisor shall be directed to collect any funds other than 
funds directed to be paid as the result of a criminal proceeding. (Ga. L. 
1956, p. 27, § 14; Ga. L. 1958, p. 15, § 10; Ga. L. 1960, p. 1148, § 3; Ga. L. 
1972, p. 604, § 10; Ga. L. 1989, p. 380, § 3.) 



Cross references. — Applicability of this 
state's correction laws to probationers' 
found in other states, Ch. 11 of this title. 



Law reviews. — For note on 1989 amend- 
ment to this Code section, see 6 Ga. St. U.L. 
Rev. 232 (1989). 



JUDICIAL DECISIONS 



Extraterritorial effect. — This section is of 
no effect in State of Alabama. Roberts v. 
Lowry, 160 Ga. 494, 128 S.E. 746 (1925). 

Vague sentence on charge of abandon- 
ment. — Where sentence on a charge of 
abandonment did not specify whether the 
payments required thereunder were in the 
nature of a fine or a payment for the support 
of the defendant's child or children, and 
failed to specify where or to whom the 



payments were to be made, this provision of 
the sentence was too vague and indefinite to 
be enforceable, and a revocation of the 
probation sentence solely on the ground 
that the defendant did not make the pay- 
ments specified was without authority of law. 
Guest v. State, 87 Ga. App. 184, 73 S.E.2d 218 
(1952). 

Cited in Meyers v. Whittle, 171 Ga. 509, 
156 S.E. 120 (1930). 



255 



42-8-33 



PENAL INSTITUTIONS 



42-8-33 



OPINIONS OF THE ATTORNEY GENERAL 



Collection of abandonment and bastardy 
payments. — In this section, there is no 
proviso excluding abandonment and bas- 
tardy cases and, since both are declared to 
be misdemeanors, funds directed to be paid 
as the result of such cases would be the result 
of "criminal proceedings" as defined in this 
section, and the probation officers may be 
ordered to collect same. 1963-65 Op. Att'y 
Gen. p. 514. 

Probation office employees. — The De- 
partment of Offender Rehabilitation (Cor- 
rections) may not enter into an arrangement 
with rhe Department of Human Resources 
in which employees of local probation of- 
fices, other than probation supervisors, may 
collect child support recovery unit money 
which arises from civil proceedings brought 
by the Department of Human Resources on 
behalf of errant fathers. 1982 Op. Att'y Gen. 
No. 82-99. 

Collection of supervision fee by depart- 
ment. — Department of Offender Rehabili- 
tation (Corrections) may not on its own 
initiative collect supervision fee from proba- 
tioners. 1981 Op. Att'y Gen. No. 81-100. 

Payment of fee by probationer. — Proba- 
tioner's agreement to pay supervision fee 
should be obtained at time of sentencing 
and should be recorded. But, regardless of 
whether probationer agrees, he can be re- 
quired to pay reasonable supervision fee as 
condition of probation. 1981 Op. Att'y Gen. 
No. 81-100. 



Retention of fee. — Probation supervi- 
sion fee, collected pursuant to probation 
order of sentencing court, does not have a 
statutory premise. Therefore, such a fee 
does not have to be paid into state treasury 
but, if permitted by probation order, could 
be retained by Department of Offender Re- 
habilitation (Corrections). 1981 Op. Att'y 
Gen. No. 81-100. 

Authority to collect payments of fines and 
restitution. — The collection and disburse- 
ment of payments of fines and restitution as 
may be established as conditions upon the 
grant of parole may be undertaken by pro- 
bation supervisors employed by the Depart- 
ment of Offender Rehabilitation (Correc- 
tions) so long as such payments are 
specifically required by court order as the 
result of a criminal proceeding. 1984 Op. 
Att'y Gen. No. 84-50. 

Probation supervisors employed by the 
Probation Division of the Georgia Depart- 
ment of Corrections may collect voluntary 
payments of court-ordered fines and restitu- 
tion after the expiration of periods of pro- 
bation. 1987 Op. Att'y Gen. No. 87-10. 

Withholding of "collection fee" from 
fines. — Since expenses of Department of 
Offender Rehabilitation (Corrections) in su- 
pervising probationers are not a proper cost 
of prosecution, the department cannot with- 
hold "collection fee" to offset these costs 
from fines which it collects. 1981 Op. Att'y 
Gen. No. 81-100. 



42-8-33. Audits of accounts of probation supervisors; records and reports 
of audits; bonds of auditors; limitation on refunding overpayment 
of fines, restitutions, or moneys owed. 

(a) The department shall make periodic audits of each probation 
supervisor who, by virtue of his duties, has any moneys, fines, court costs, 
property, or other funds coming into his control or possession or being 
disbursed by him. The department shall keep a permanent record of the 
audit of each probation supervisor's accounts on file. It shall be the duty of 
the employee of the department conducting the audit to notify the 
department in writing of any discrepancy of an illegal nature that might 
result in prosecution. The department shall have the right to interview and 
make inquiry of certain selected payors or recipients of funds, as it may 
choose, without notifying the probation supervisor, to carry out the 
purposes of the audit. The employee who conducts the audit shall be 



256 



42-8-34 PROBATION 42-8-34 

required to give bond in such amount as may be set by the department, in 
the same manner and for the same purposes as provided under Code 
Section 42-8-26 for the bonds of probation supervisors. The bond shall bind 
the employee and his surety in the performance of his duties. 

(b) Any overpayment of fines, restitutions, or other moneys owed as a 
condition of probation shall not be refunded to the probationer if the 
amount of such overpayment is less than $5.00. (Ga. L. 1960, p. 1092, § 2; 
Ga. L. 1965, p. 413, § 5; Ga. L. 1967, p. 86, § 5: Ga. L. 1972, p. 604, § 13; 
Ga. L. 1987, p. 452, § 1.) 

Code Commission notes. — Pursuant to ment" was twice substituted for 
Code Section 28-9-5, in 1987, "overpay- "over-payment" in subsection (b). 

42-8-34. Hearings and determinations; referral of cases to probation super- 
visors; probation or suspension of sentence; payment of fine or 
costs; disposition of defendant prior to hearing; continuing juris- 
diction; transferral of probation supervision; probation fee. 

(a) Any court of this state which has original jurisdiction of criminal 
actions, except juvenile courts, municipal courts, and probate courts, in 
which the defendant in a criminal case has been found guilty upon verdict 
or plea or has been sentenced upon a plea of nolo contendere, except for 
an offense punishable by death or life imprisonment, may, at a time to be 
determined by the court, hear and determine the question of the probation 
of such defendant. 

(b) Prior to the hearing, the court may refer the case to the probation 
supervisor of the circuit in which the court is located for investigation and 
recommendation. The court, upon such reference, shall direct the super- 
visor to make an investigation and to report to the court, in writing at a 
specified time, upon the circumstances of the offense and the criminal 
record, social history, and present condition of the defendant, together with 
the supervisor's recommendation; and it shall be the duty of the supervisor 
to carry out the directive of the court. 

(c) Subject to the provisions of subsection (a) of Code Section 17-10-1 
and subsection (g) of Code Section 17-10-3, if it appears to the court upon 
a hearing of the matter that the defendant is not likely to engage in a 
criminal course of conduct and that the ends of justice and the welfare of 
society do not require that the defendant shall presently suffer the penalty 
imposed by law, the court in its discretion shall impose sentence upon the 
defendant but may stay and suspend the execution of the sentence or any 
portion thereof or may place him on probation under the supervision and 
control of the probation supervisor for the duration of such probation. The 
period of probation or suspension shall not exceed the maximum sentence 
of confinement which could be imposed on the defendant. 

(d) In every case that a court of this state or any other state sentences a 
defendant to probation or any pretrial release or diversion program under 

257 



42-8-34 PENAL INSTITUTIONS 42-8-34 

the supervision of the department, in addition to any fine or order of 
restitution imposed by the court, there shall be imposed a probation fee as 
a condition of probation, release, or diversion in the amount equivalent to 
$20.00 per each month under supervision. The probation fee may be 
waived or amended after administrative process by the department and 
approval of the court, or upon determination by the court, as to the undue 
hardship, inability to pay, or any other extenuating factors which prohibit 
collection of the fee; provided, however, that the imposition of sanctions for 
failure to pay fees shall be within the discretion of the court through judicial 
process or hearings. Probation fees shall be waived on probationers 
incarcerated or detained in a departmental or other confinement facility 
which prohibits employment for wages. All probation fees collected by the 
department shall be paid into the general fund of the state treasury. 

(e) The court may, in its discretion, require the payment of a fine or 
costs, or both, as a condition precedent to probation. 

(f ) During the interval between the conviction or plea and the hearing 
to determine the question of probation, the court may, in its discretion, 
either order the confinement of the defendant without bond or may permit 
his release on bond, which bond shall be conditioned on his appearance at 
the hearing and shall be subject to the same rules as govern appearance 
bonds. Any time served in confinement shall be considered a part of the 
sentence of the defendant. 

(g) The sentencing judge shall not lose jurisdiction over any person 
placed on probation during the term of his probated sentence. The judge 
is empowered to revoke any or all of the probated sentence, rescind any or 
all of the sentence, or, in any manner deemed advisable by the judge, to 
modify or change the probated sentence at any time during the period of 
time originally prescribed for the probated sentence to run. 

(h) Notwithstanding any provision of this Code or any rule or regulation 
to the contrary, if a defendant is placed on probation in a county of a 
judicial circuit other than the one in which he resides for committing any 
misdemeanor offense, such defendant may, when specifically ordered by 
the court, have his probation supervision transferred to the judicial circuit 
of the county in which he resides. (Code 1933, § 27-2702; Ga. L. 1939, p. 
285, § 4; Ga. L. 1941, p. 481, § 1; Ga. L. 1950, p. 352, §§ 1, 2; Ga. L. 1956, 
p. 27, § 8; Ga. L. 1958, p. 15, § 8; Ga. L. 1960, p. 1148, § 1; Ga. L. 1972, p. 
604, § 7; Ga. L. 1980, p. 1136, § 1; Ga. L. 1988, p. 988, § 1; Ga. L. 1989, p. 
381, §§ 2, 3; Ga. L. 1992, p. 3221, § 5; Ga. L. 1993, p. 426, § 1.) 

Cross references. — Sentence and punish- Law reviews. — For article, "A Review of 
ment generally, Ch. 10, T. 17. Abandonment Georgia's Probation Laws," see 6 Ga. St. B.J. 
of child generally, Ch. 10, T. 19. Suspension 255 (1970). 
of sentence in abandonment cases, 
§ 19-10-KJ). 

258 



42-8-34 



PROBATION 



42-8-34 



JUDICIAL DECISIONS 



Analysis 



General Consideration 

Hearing and Determination 

Referral for Investigation and Recommendation 

Presentence Investigation and Report 

1. In General 

2. Use 

3. Disclosure of Contents to Counsel 

4. Presentence and Post-sentence 
Condition Precedent to Probation 
Probation or Suspension of Sentence 
Continuing Jurisdiction of Sentencing Court 



General Consideration 

This section has no reference to habeas 
corpus. Cook v. Jenkins, 146 Ga. 704, 92 S.E. 
212 (1917). 

Refusal to release prisoner. — While orig- 
inal sentence and order revoking probation 
are still in force, it is not error to refuse to 
release prisoner upon habeas corpus al- 
though the evidence upon such hearing 
showed no violation of the conditions of 
probation. Troup v. Carter, 154 Ga. 481, 114 
S.E. 577 (1922). 

Sentencing error. — Trial court erred in 
sentencing person convicted of murder to 
life imprisonment plus probation to be 
served under the supervision of the sentenc- 
ing court. Brown v. State, 246 Ga. 251, 271 
S.E.2d 163 (1980). 

Cited in Streetman v. State, 70 Ga. App. 
192, 27 S.E.2d 704 (1943); Buice v. Bryan, 
212 Ga. 508, 93 S.E.2d 676 (1956); Daniel v. 
Whitlock, 222 Ga. 192, 149 S.E.2d 79 (1966); 
Woodall v. State, 122 Ga. App. 653, 178 
S.E.2d 337 (1970); Garrett v. State, 125 Ga. 
App. 743, 188 S.E.2d 920 (1972); Calhoun v. 
Couch, 232 Ga. 467, 207 S.E.2d 455 (1974); 
Barnett v. Hopper, 234 Ga. 694, 217 S.E.2d 
280 (1975); Dailey v. State, 136 Ga. App. 866, 
222 S.E.2d 682 (1975); Patton v. Ricketts, 
236 Ga. 293, 223 S.E.2d 635 (1976); Van 
Voltenburg v. State, 138 Ga. App. 628, 227 
S.E.2d 451 (1976); Decker v. State, 139 Ga. 
App. 707, 229 S.E.2d 520 (1976); McKisic v. 
State, 238 Ga. 644, 234 S.E.2d 908 (1977); 
Patat v. State, 142 Ga. App. 398, 236 S.E.2d 
143 (1977); Warner v. Jones, 241 Ga. 467, 
246 S.E. 2d 320 (1978); Handsford v. State, 
147 Ga. App. 665, 249 S.E.2d 768 (1978); 
Stallworth v. State, 150 Ga. App. 766, 258 



S.E.2d 611 (1979); Cofer v. Hawthorne, 154 
Ga. App. 875, 270 S.E.2d 84 (1980); Johnson 
v. State, 156 Ga. App. 511, 274 S.E.2d 669 
(1980); Parkerson v. State, 156 Ga. App. 440, 
274 S.E.2d 799 (1980); Turnipseed v. State, 
158 Ga. App. 266, 279 S.E.2d 725 (1981); 
State v. Hasty, 158 Ga. App. 464, 280 S.E.2d 
873 (1981); Dilas v. State, 159 Ga. App. 39, 
282 S.E.2d 690 (1981); Fowler v. State, 159 
Ga. App. 496, 283 S.E.2d 710 (1981); Jackson 
v. State, 248 Ga. 480, 284 S.E.2d 267 (1981); 
Johns v. State, 160 Ga. App. 535, 287 S.E.2d 
617 (1981); Stillwell v. State, 161 Ga. App. 
230, 288 S.E.2d 295 (1982); Howard v. State, 
161 Ga. App. 743, 289 S.E.2d 815 (1982); 
Jones v. State, 165 Ga. App. 180, 300 S.E.2d 
534 (1983); Strickland v. State, 165 Ga. App. 
197, 300 S.E.2d 537 (1983); Pooler v. Taylor, 
173 Ga. App. 859, 328 S.E.2d 749 (1985); 
Taylor v. State, 181 Ga. App. 199, 351 S.E.2d 
723 (1986); Acker v. State, 184 Ga. App. 321, 
361 S.E.2d 509 (1987); Harrison v. State, 201 
Ga. App. 577, 411 S.E.2d 738 (1991); 
Cauldwell v. State, 211 Ga. App. 417, 439 
S.E.2d90 (1993). 

Hearing and Determination 

Stage of proceedings to determine proba- 
tion. — The language of this section seems 
to refer to probation as a part of the original 
sentence, and the provision for a hearing 
must, considering the language as a whole, 
refer to a hearing on the type of sentence to 
be imposed, and not authorize the court, at 
a subsequent term, to add to the sentence a 
provision for probation where he made no 
provision relating thereto in the first in- 
stance. Phillips v. State, 95 Ga. App. 277, 97 
S.E.2d 707 (1957). 



259 



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Hearing and Determination (Cont'd) 

Consideration of conduct during trial. — 

Trial court may properly consider defen- 
dant's conduct during trial in considering 
whether to suspend or probate all of the 
sentence, and such a consideration does not 
come within the restrictions of § 17-10-2. 
Williams v. State, 165 Ga. App. 553, 301 
S.E.2d908 (1983). 

Consideration of conduct prior to sen- 
tencing. — The trial court did not err in 
considering information as to an altercation 
between the defendant and a deputy sheriff 
taking him to his cell during the trial prior to 
sentencing where the sentence was already 
set and the information complained of was 
considered by the trial court merely to de- 
termine what portions would be served on 
probation or incarceration. Fields v. State, 
167 Ga. App. 816, 307 S.E.2d 712 (1983). 

Juvenile court adjudications considered. 
— It is not unconstitutional to use juvenile 
court adjudications to determine whether 
subsequent felony conviction should be pro- 
bated. Brawner v. State, 250 Ga. 125, 296 
S.E.2d551 (1982). 

Omission of presentence hearing. — It is 
error to omit the presentence hearing to 
decide on the defendant's punishment after 
the verdict. Howard v. State, 161 Ga. App. 
743, 289S.E.2d815 (1982). 

Referral for Investigation and 
Recommendation 

Referral of case to probation officer not 
jurisdictional. — Under this section, the 
court sentencing the defendant has jurisdic- 
tion of the probation features of the case 
and may refer the case to a circuit probation 
officer (now probation supervisor) for inves- 
tigation and recommendation prior to hear- 
ing, but the fact that the court has placed the 
defendant on probation without such refer- 
ral does not mean either that the court is 
without jurisdiction to revoke the probation, 
or that the provisions of this article do not 
apply. Harrington v. State, 97 Ga. App. 315, 
103 S.E.2d 126 (1958). 

Use of juvenile court record in investiga- 
tion report. — This section and § 15-1 1-38, 
construed in pari materia, clearly authorize 
the use of the juvenile court record in 
dispositional proceedings after conviction of 
a felony for the purposes of a presentence 



investigation and report. Jones v. State, 129 
Ga. App. 623, 200 S.E.2d 487 (1973). 

Adjudications or dispositions under Ch. 
11, T. 15 and its predecessors do not consti- 
tute a "criminal record," but a juvenile 
court record would be included within ap- 
pellant's "social history," for the purpose of 
this section. Jones v. State, 129 Ga. App. 623, 
200 S.E.2d 487 (1973). 

Presentence Investigation and Report 

1. In General 

Ordering of probation report. — It is in 

discretion of court whether or not to order 
probation report. Belcher v. State, 173 Ga. 
App. 509, 326 S.E.2d 857 (1985). 

Whether or not to order a probation 
report to determine whether defendant's 
sentence should be suspended or whether 
he should be placed on probation is within 
the sound discretion of the trial judge. Hill v. 
State, 212 Ga. App. 386, 441 S.E.2d 863 
(1994). 

Reports under this section and § 17-10-2 
compared. — Reports under this section are 
more diverse in the type of information they 
may contain since they are used only in 
determining the question of suspension or 
probation of sentence and need not be 
shown to counsel, whereas, reports under 
§ 17-10-2 are more restrictive and must be 
shown to counsel before trial. Moss v. State, 
159 Ga. App. 317, 283 S.E.2d 275 (1981). 

Not to be regarded as evidence. — Infor- 
mation in report filed under this section 
cannot be regarded as "evidence" either in 
aggravation or in mitigation. Threatt v. State, 
156 Ga. App. 345, 274 S.E.2d 734 (1980). 

2. Use 

Consideration for deciding whether to 
suspend or revoke sentence. — This section 
authorizes the trial judge to consider inves- 
tigation reports for the purpose of deciding 
whether to suspend or probate all or part of 
the sentence. Although authorized for con- 
sideration on the question of probation, in 
practice such reports may be considered by 
the trial judge in reducing the length of the 
sentence. Bentley v. Willis, 247 Ga. 461, 276 
S.E.2d 639 (1981). 

The trial court is authorized under 
§ 42-8-29 and this section to consider inves- 



260 



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42-8-34 



tigative reports prepared by probation offic- 
ers for the purpose of deciding whether to 
suspend or probate all or part of the defen- 
dant's sentence, but the court cannot use 
the reports to determine the length of the 
sentence. Williams v. State, 165 Ga. App. 553, 
301 S.E.2d908 (1983). 

Probation report cannot be offered in 
aggravation of sentence, regardless of 
whether it lists prior offenses. McDuffie v. 
Jones, 248 Ga. 544, 283 S.E.2d 601 (1981). 

Use of previously undisclosed report. — 
Although use of a previously undisclosed 
probation report to aid the trial judge in 
determining whether to suspend or probate 
a sentence does not invalidate the sentence 
which is imposed, it cannot be used in fixing 
the length of the sentence. McDuffie v. 
Jones, 248 Ga. 544, 283 S.E.2d 601 (1981). 

Use as evidence in aggravation. — A 
presentence report under § 17-10-2 may be 
used as evidence in aggravation, thereby 
affecting the length of sentence, only if it 
had been made known to the defendant 
prior to his trial. However, under this section 
a presentence report is also authorized be- 
fore pronouncing sentence for the purpose 
of deciding whether to suspend or probate 
all or part of the sentence to be imposed in 
a case. Threatt v. State, 156 Ga. App. 345, 274 
S.E.2d 734 (1980). 

Use in determining length of sentence. — 
If the presentence report is to be used to 
determine length of sentence, the proce- 
dure set forth in § 17-10-2 must be followed; 
but, if the report is to be used only to 
determine whether to probate or suspend all 
or a portion of the sentence, it can be used. 
The presentence investigation report cannot 
be used in aggravation in fixing the length of 
the sentence. Threatt v. State, 156 Ga. App. 
345, 274 S.E.2d 734 (1980). 

3. Disclosure of Contents to Counsel 

Judge's discretion to reveal content of 
report to counsel. — Since this section does 
not require the content of a presentence 
probation report to be shared with counsel, 
it is in the sound discretion of the trial judge 
whether to reveal the content of the report 
to counsel for the accused and for the state. 
Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 
(1975); Benefield v. State, 140 Ga. App. 727, 
232 S.E.2d 89 (1976); Watts v. State, 141 Ga. 
App. 127, 232 S.E.2d 590, cert, denied, 434 



U.S. 925, 98 S. Ct. 405, 54 L. Ed. 2d 283 
(1977); Dorsey v. Willis, 242 Ga. 316, 249 
S.E.2d 28 (1978); Almon v. State, 151 Ga. 
App. 863, 261 S.E.2d 772 (1979), cert, de- 
nied, 446 U.S. 910, 100 S. Ct. 1839, 64 L. Ed. 
2d 263 (1980). 

Disclosure of presentence report contain- 
ing adverse matters. — If a presentence 
probation officer's report contains any mat- 
ter adverse to the defendant and likely to 
influence the decision to suspend or probate 
the sentence, it should be revealed to de- 
fense counsel by the trial judge in advance of 
the presentence hearing to give the accused 
an opportunity for explanation or rebuttal. 
Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 
(1975); Benefield v. State, 140 Ga. App. 727, 
232 S.E.2d 89 (1976); Dorsey v. Willis, 242 
Ga. 316, 249 S.E.2d 28 (1978); Almon v. 
State, 151 Ga. App. 863, 261 S.E.2d 772 
(1979), cert, denied, 446 U.S. 910, 100 S. Ct. 
1839, 64 L. Ed. 2d 263 (1980). 

Notification by court of intent to use 
matters in aggravation. — When the trial 
court intends to consider matters in aggra- 
vation that were ruled inadmissible during 
the guilt-innocence phase of the trial, the 
court must inform defense counsel and the 
prosecution of its plans in this regard before 
the presentence hearing. Absent such notice 
from the trial court judge, the defense and 
the prosecution cannot adequately prepare 
their cases or summon their witnesses for the 
presentence hearing. Dorsey v. Willis, 242 
Ga. 316, 249 S.E.2d 28 (1978). 

4. Presentence and Post-sentence 

Effect of labeling report as post-sentence 
or presentence. — Labeling an investigative 
report of the probation department as a 
"post-sentence" report, as contra- 
distinguished from a "presentence" report, 
will not change its legal effect where the 
content, the purpose, and function of the 
report are the same. Threatt v. State, 156 Ga. 
App. 345, 274 S.E.2d 734 (1980). 

The trial court may not do indirecdy — 
with a "post-sentence" report, that which 
Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 
(1975) proscribes directly — using a 
"presentence" report to determine length 
of sentence. Threatt v. State, 156 Ga. App. 
345, 274 S.E.2d 734 (1980). 

Utilizing later report to determine final 
length of sentence. — The trial court erred 



261 



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PENAL INSTITUTIONS 



42-8^34 



Presentence Investigation and 

Report (Cont'd) 
4. Presentence and Post-sentence (Cont'd) 

in imposing the maximum sentence with the 
intent of utilizing a later report to determine 
the final length of sentence. Threatt v. State, 
156 Ga. App. 345, 274 S.E.2d 734 (1980). 

Difference between "presentence" and 
"post-sentence" reports. — Because there is 
no discernible difference between a 
"presentence" and "post-sentence" report, 
except as to time of submission, this is of no 
import where each is used for the same 
purpose. Thus, it is permissible to use a 
"presentence" or "post-sentence" report 
for the purpose of deciding whether to 
suspend or probate all or some part of a 
sentence. For the same reason it is impermis- 
sible to use a "presentence" or 
"post-sentence" report in fixing the length 
of the sentence. Threatt v. State, 156 Ga. 
App. 345, 274 S.E.2d 734 (1980). 

Where the trial court intended to use the 
"post-sentence" report to determine the fi- 
nal length of the sentence, it is implicit that 
the trial court imposed the original sentence 
with the intent of determining a final length 
of sentence only after viewing the 
"post-sentence" investigative report. In such 
instance, Munford v. State, 235 Ga. 38, 218 
S.E.2d 792 (1975) and Mills v. State, 244 Ga. 
186, 259 S.E.2d 445 (1979), proscribe the 
use of the reports to determine "length" of 
sentence without compliance with the provi- 
sions of § 17-10-2. Threatt v. State, 156 Ga. 
App. 345, 274 S.E.2d 734 (1980). 

Condition Precedent to Probation 

Payment of fine as condition precedent. 

— A condition of sentence to be served on 
probation may include the immediate pay- 
ment of a fine. Such a sentence does not 
violate the due process and equal protection 
clause of U.S. Const., Amend. 14. Hunter v. 
Dean, 240 Ga. 214, 239 S.E.2d 791 (1977), 
cert dismissed, 439 U.S. 281, 99 S. Ct. 712, 
58 L. Ed. 2d 520 (1978), overruled on other 
grounds, Massey v. Meadows, 253 Ga. 389, 
321 S.E.2d 703 (1984). 

Ability of defendant to pay fine. — Be- 
cause the ability of a defendant to pay a fine 
is often a factor for the sentencing judge to 
consider in assessing the likelihood that the 
defendant will serve a term of probation 



without violation, a conditionally probated 
sentence is not necessarily invidious discrim- 
ination based on wealth if the sentencing 
judge has determined that the defendant 
would not be a good candidate for probation 
unless a fine is paid first. Hunter v. Dean, 240 
Ga. 214, 239 S.E.2d 791 (1977), cert dis- 
missed, 439 U.S. 281, 99 S. Ct. 712, 58 L. Ed. 
2d 520 (1978), overruled on other grounds, 
Massey v. Meadows, 253 Ga. 389, 321 S.E.2d 
703 (1984). 

A condition of probation which stipulated 
that the defendant pay a fine "as and when 
directed by probation officer" without hav- 
ing held a hearing on his indigency did not 
violate this section, since payment of the fine 
was not a condition precedent to the entry 
upon probation. Whitehead v. State, 207 Ga. 
App. 891, 429 S.E.2d 536 (1993). 

Defendant must be aware of condition 
precedent. — WTiile a court may lawfully 
require the payment of a fine as a condition 
precedent to being allowed to begin a pro- 
bationary period, due process demands that 
the defendant be made aware that such 
condition is in fact a condition precedent. 
Huff v. McLarty, 241 Ga. 442, 246 S.E.2d 302 
(1978). 

Conditioning probation on lump sum pay- 
ment of fine. — Probation of a jail sentence 
may constitutionally be conditioned upon 
payment of a fine in lump sum when the 
defendant is indigent and unable to make 
immediate payment of the fine. Hunter v. 
Dean, 240 Ga. 214, 239 S.E.2d 791 (1977), 
cert, dismissed, 439 U.S. 281, 99 S. Ct. 712, 
58 L. Ed. 2d 520 (1978), overruled on other 
grounds, Massey v. Meadows, 253 Ga. 389, 
321 S.E.2d 703 (1984). 

Condition not to engage in practice of law 
permissible. — The inclusion in a probation 
order of the condition that the defendant 
not engage in the practice of law for a period 
of one year is within the sound discretion of 
the court in probating the sentence and is 
authorized under this section and § 42-8-35. 
Yarbrough v. State, 119 Ga. App. 46, 166 
S.E.2d 35 (1969). 

Probation or Suspension of Sentence 

Probated confinement held excessive. — 

Where a repeat offender was convicted on 
two counts of misdemeanor theft, and the 
trial court imposed probated confinement 
for a period of five years when the maximum 
period of confinement which could be im- 



262 



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PROBATION 



42-8-34 



posed was for a term of one year, this error 
was not harmless, as both sentences ran 
consecutively and one of the conditions of 
the probation was, that in the event proba- 
tion was revoked, the trial court could order 
the execution of the sentence originally im- 
posed. Tenney v. State, 194 Ga. App. 820, 392 
S.E.2d294 (1990). 

Notice and hearing prior to revocation of 
suspended sentence. — A sentence which is 
suspended cannot be revoked as to the sus- 
pension feature without notice and opportu- 
nity to be heard. This is true as the modifi- 
cation may be made only after hearing and a 
finding by the court that the defendant has 
failed to comply with the terms under which 
the sentence was suspended. Entrekin v. 
State, 147 Ga. App. 724, 250 S.E.2d 177 
(1978). 

Crimes to which probation of sentence 
permissible. — It is within the power of the 
court to pass probation sentence where de- 
fendant convicted of operating automobile 
while intoxicated. Jones v. State, 27 Ga. App. 
631, 110S.E. 33 (1921). 

It is within the power of the court to pass 
probation sentence where defendant has 
been convicted of criminally abandoning his 
child. Towns v. State, 25 Ga. App. 419, 103 
S.E. 724, cert, denied, 25 Ga. App. 841 
(1920). 

Placing defendant on probation. — Under 
this section, the court may, upon a verdict of 
guilty in the case of a defendant who has not 
been previously convicted of a felony, with- 
out entering a judgment of guilt and with 
the consent of the defendant, defer further 
proceedings and place the defendant on 
probation which would authorize discharge 
without court adjudication of guilt in the 
event defendant did not violate probation. 
Winget v. State, 138 Ga. App. 433, 226 S.E.2d 
608, overruled on other grounds, Quick v. 
State, 139 Ga. App. 440, 228 S.E.2d 592 
(1976). 

Probating sentence after passage of more 
than four terms of court. — Trial court had 
authority to probate defendant's sentence to 
confinement, even though more than four 
terms of court had passed since conviction 
arid sentence, where the court did not in- 
tend its sentence to be the final sentence 
and probated the confinement after receiv- 
ing a post-sentence investigator's report. 
State v. Johnson, 183 Ga. App. 236, 358 



S.E.2d 840, cert, denied, 183 Ga. App. 907, 
358S.E.2d840 (1987). 

Continuing Jurisdiction of Sentencing 
Court 

Retention for entire term of probation. — J - 

The sentencing judge retains jurisdiction 
over the probated person during the entire 
term of such probated sentence, but cannot 
revoke any sentence which has expired at 
the time the revocation proceedings are had, 
nor revoke any future sentence which has 
not begun to run at the time of such revo- 
cation proceedings. Todd v. State, 108 Ga. 
App. 615, 134 S.E.2d 56 (1963). 

Authority of judge. — A trial judge is 
granted power and authority to suspend or 
probate a determinate sentence; he does not 
have authority to do both. Jones v. State, 154 
Ga. App. 5S\, 269 S.E.2d 77 (1980). 

Modification of conditions of probation. 
— If the conditions of probation are be- 
lieved to be illegal, appellant may apply for 
modification under the provisions of this 
section which continues jurisdiction of pro- 
bation in the sentencing judge. Dean v. 
Whalen, 234 Ga. 182, 215 S.E.2d 7 (1975). 

The expansion of power of modification 
granted to the sentencing court applies only 
to the probated portion of a split-time sen- 
tence. Burns v. State, 153 Ga. App. 529, 265 
S.E.2d859 (1980). 

Prior to this section's enactment, a trial 
judge did not have authority to suspend the 
execution of a sentence, except to review the 
judgment upon which the sentence was im- 
posed. Henry v. State, 77 Ga. App. 735, 49 
S.E.2d 681 (1948). 

Trial court's power to rescind, modify, or 
change a sentence "at any time" is limited by 
its terms to the sentence itself or its condi- 
tions and the court may not go behind the 
sentence to readdress the merits of a plea 
which was ruled on in a preceding term. 
State v.James, 211 Ga. App. 149, 438 S.E.2d 
399 (1993). 

Trial court had authority to require defen- 
dant to undergo treatment as a sex offender 
after he began serving his probated sen- 
tence, and the addition of such a condition 
was authorized whether or not there had 
been a violation of existing conditions of 
probation. Edwards v. State, 216 Ga. App. 
740, 456 S.E.2d 213 (1995) 



263 



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42-8-34 



Continuing Jurisdiction of Sentencing 
Court (Cont'd) 

Section modified by § 17-10-1. — This 
section, which provides that the court shall 
not lose jurisdiction over a defendant during 
the term of a probated sentence, but shall 
have power to change or modify it during 
the period of time originally described for 
the probated sentence to run, has been 
modified by § 17-10-1 which provided that 
after the term of court at which a sentence is 
imposed by a judge, he shall have no author- 
ity to suspend, probate, modify or change 
the sentence of the prisoner, except as oth- 
erwise provided. Entrekin v. State, 147 Ga. 
App. 724, 250 S.E.2d 177 (1978). 

Court's discretion in revocation hearing. 
— In a revocation of probation hearing, the 
trial court, as the trier of fact, has a very wide 
discretion and evidence of misconduct of 
the probationer is sufficient where no man- 
ifest abuse of discretion has been shown. 
Barron v. State, 158 Ga. App. 172, 279 S.E.2d 
299 (1981). 

Basis for revoking defendant's probation. 
. — Where the defendant and the trial judge 
agreed on restitution as a condition of his 
probated sentence, and where there was 
evidence that the defendant was able to pay 
other bills, and he continued to operate his 
business and pay business expenses, this 
could and did serve as basis of defendant's 
probation revocation. Fong v. State, 149 Ga. 
App. 456, 254 S.E.2d 460 (1979). 

Revocation of probation based on subse- 
quent crime. — Nothing in this section 
prevents the revocation of the probated por- 
tion of a sentence based upon a separate 
crime committed during the portion of the 
sentence to be served in confinement. 
Layson v. Montgomery, 251 Ga. 359, 306 
S.E.2d245 (1983). 

Amending or revoking sentence before 
commencement of sentence. — The court 
has no power to amend a sentence or revoke 
its probationary or suspended feature before 
the term of sentence has commenced to 
run, except in the case of the exercise of the 
plenary power of the court to amend, mod- 
ify, or rescind judgments during the term of 
court in which they are entered; and it is 
error to order the revocation of such sen- 
tence, the term of which is not in effect at 
the time of the purported revocation. Todd 



v. State, 107 Ga. App. 771, 131 S.E.2d 201 
(1963). 

The trial court has no power to amend 
and modify' a sentence in a criminal case 
after the term during which it was imposed; 
accordingly, where the defendant had been 
sentenced to an indeterminate term in the 
penitentiary without any provision for pro- 
bation, the court properly refused to enter- 
tain a motion made at a subsequent term 
that the sentence be modified so as to allow 
the defendant to serve it on probation. 
Phillips v. State, 95 Ga. App. 277, 97 S.E.2d 
707 (1957). 

Revocation of sentence being served. — A 
probated or suspended sentence may be 
revoked provided the sentence being re- 
voked is in effect and being served at the 
time the order of revocation is made, even 
though the act upon which the revocation is 
based was committed prior to the date the 
defendant actually begins serving such pro- 
bated sentence, but after the date of the 
imposition of the sentence. Todd v. State, 
108 Ga. App. 615, 134 S.E.2d 56 (1963). 

A court revoking probation because of a 
subsequent conviction may not make the 
revoked sentence consecutive to an inter- 
vening sentence. England v. Newton, 238 Ga. 
534, 233 S.E.2d 787 (1977). 

The probated portion of a sentence may 
be revoked or modified at any time during 
the term of the probated sentence, after 
hearing and finding of probation violation. 
Logan v. Lee, 247 Ga. 608, 278 S.E.2d 1 
(1981). 

The revoking court may not increase the 
original sentence. — Thus the language 
"modify' or change" in this section is limited 
by § 42-8-38. England v. Newton, 238 Ga. 
534, 233S.E.2d787 (1977). 

While under this section, the trial court 
does have jurisdiction to change or modify 
the terms of the original sentence, it cannot, 
under §§ 17-10-1 and 42-8-38, increase the 
sentence originally passed. Turnipseed v. 
State, 147 Ga. App. 735, 250 S.E.2d 186 
(1978). 

Suspended sentence cannot exceed maxi- 
mum sentence of confinement. — Once 
service of a suspended sentence begins, ei- 
ther by incarceration or probation, it cannot 
exceed the maximum sentence of confine- 
ment which could have been imposed. 
Turnipseed v. State, 147 Ga. App. 735, 250 
S.E.2d 186 (1978). 

Misdemeanors. — For a misdemeanor, the 



264 



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PROBATION 



42-8-34 



probated sentence must be considered 
served at the end of the 12-month period. 
Entrekin v. State, 147 Ga. App. 724, 250 
S.E.2d 177 (1978). 

Revocation of sentence commencing at 
future date. — By reading this section with 
§ 17-10-1, a trial judge can revoke a pro- 
bated sentence that is to begin at a future 
date. Parrish v. Ault, 237 Ga. 401, 228 S.E.2d 
808 (1976); Roberts v. State, 148 Ga. App. 
708, 252 S.E.2d 209 (1979). 

Amending sentence during same court 
term by shortening imprisonment. — The 
power of a superior court in a criminal case 
to amend a sentence during the same term 
of the court in which it was imposed, by 
shortening the period of imprisonment, is 
not lost by entry of the defendant upon the 
service of such sentence. Where, by an 
amendment so made during the same term, 



the period of service in the penitentiary, as 
fixed in a sentence for a reducible felony, is 
changed to a shorter term in the county 
correctional institution as for a misde- 
meanor, the amendment may also provide 
for service of the misdemeanor sentence, or 
any remainder thereof, on probation. 
Gobies v. Hayes, 194 Ga. 297, 21 S.E.2d 624 
(1942) (decided under former Code 1933, 
§ 27-2702 prior to revision by Ga. L. 1956, p. 
27). 

Increase in child-support payments before 
suspension revoked. — Increase in the 
amount of the child-support payments pur- 
suant to this section does not constitute 
double punishment or jeopardy, where the 
defendant's sentence has been suspended 
and suspension has not been revoked. 
Hudson v. State, 248 Ga. 397, 283 S.E.2d 271 
(1981). 



OPINIONS OF THE ATTORNEY GENERAL 



Use of juveniles' psychological tests. — If 

appropriate safeguards to protect the confi- 
dentiality of the records are undertaken, 
results of psychological tests administered to 
juveniles appearing in the juvenile court may 
be computerized and may be used in later 
court proceedings as authorized by 
§§ 15-11-38, 15-11-59 and this section. 1983 
Op. Att'y Gen. No. U83-25. 

Requirement to place defendant on pro- 
bation. — Unless the judge expressly states 
in his order that he is placing the defendant 
on probation, the defendant receives the 
sentence which is prescribed. 1968 Op. Att'y 
Gen. No. 68-398. 

Retention of jurisdiction despite appeal. 
— Court originally passing sentence which 
includes placing defendant on probation 
retains jurisdiction to revoke, rescind, or 
modify such probated sentence, notwith- 
standing that original case was appealed 
where decision of appellate court made de- 
cision of trial court. 1962 Op. Att'y Gen. p. 
134. 

Awarding earned time against probated 
sentence would frustrate intent of sentenc- 
ing judge who has made a previous, judicial 
determination under § 17-10-1 and this sec- 
tion that the particular individual should be 
subject to a specific period of supervision 
and control while he is being reintegrated 
into society. 1982 Op. Att'y Gen. No. 82-58. 



Inmate who actually serves three years 
incarceration of six-year sentence should 
receive only three years credit against con- 
current ten-year probated sentence, and if 
the ten-year probated sentence is later .re- 
voked, all time served prior to revocation, 
including time served in prison pursuant to 
the separate sentence, should be considered 
only as probation time, meaning 
nonearning time under § 42-5-100. 1982 
Op. Att'y Gen. No. 82-58. 

Computation of sentence after parole and 
one year of probation revoked. — Where 
inmate receives a sentence of 15 years, ten 
years to be served in confinement and the 
remaining five years to be served on proba- 
tion; after three years and seven months of 
confinement the inmate is paroled; one year 
of the probated portion of the sentence is 
revoked after parole for ten months; and 
parole is revoked one month later, the in- 
mate would be entitled to full credit for the 
three years and seven months he spent in 
incarceration and the ten-month period he 
served on parole and would be required to 
serve the remaining five years and seven 
months on the original ten-year confine- 
ment sentence plus an additional one year of 
the probated portion of the sentence which 
was revoked. 1986 Op. Att'y Gen. No. 86-7. 

Requirement to contribute for probation 
supervisors' insurance. — A probationer can 



265 



42-8-34 



PENAL INSTITUTIONS 



42-8-34 



be required to pay by court order, as a 
condition of his/her probation, a reasonable 
amount toward the cost of maintaining in- 
surance to protect probation supervisors 
from personal liability should probationers 
be injured while performing court-ordered 
community service. 1983 Op. Att'y Gen. No. 
83-18. 

Retention of jurisdiction during term of 
probation. — A court retains jurisdiction 
over a probationer during the term of his 
probationary sentence for the purpose of 
changing or modifying the order placing a 
defendant on probation during the whole of 
the probationary term imposed, or until the 
court finds that the conditions of probation 
have been breached. 1945-47 Op. Att'y Gen. 
p. 107. 

Service of entire sentence by youthful 
offender. — A judge may require service of 
the entire sentence, even though the service 
of such sentence would run past the four- 
teenth or twenty-first birthday of the child; 
this conclusion is based on the fact that the 
age of the child designates only the length of 
jurisdiction to "revoke," rather than juris- 
diction per se. 1963-65 Op. Att'y Gen. p. 514. 

Child abandonment prosecution not 
barred by bastardy prosecution. — A bas- 
tardy prosecution is not a bar to a subse- 
quent child abandonment prosecution. 1969 
Op. Att'y Gen. No. 69-323. 

Liability of father for failure to support. 
— A father is criminally liable, throughout 
the minority of his illegitimate child, for a 
failure to support that child. 1969 Op. Att'y 
Gen. No. 69-323. 

A suspended sentence in abandonment 
and bastardy cases is permissible and the 
court may retain jurisdiction of the offender 
until the offender's child has reached the 
age designated by the statute. 1963-65 Op. 
Att'y Gen. p. 514. 

Hearing for probation violator. — A pro- 
bation violator may be returned to the sen- 
tencing court for a hearing or he may have a 
hearing in a court of equivalent original 
criminal jurisdiction within the county 



wherein the probationer resides for pur- 
poses of supervision upon the giving of ten 
days' written notice to the sentencing court 
prior to the hearing on the merits. 1965-66 
Op. Att'y Gen. No. 66-257. 

Collection of funds by probation officer. 
— Upon proper court order, the probation 
officers would be authorized to collect funds 
made payable in connection with suspended 
sentences. 1963-65 Op. Att'y Gen. p. 4. 

Power of Board of Corrections to change 
probation. — The Board of Offender Reha- 
bilitation (Corrections) does not have power 
to change the conditions of probation; 
these, including travel restrictions, could be 
changed only by order of the sentencing 
court. 1971 Op. Att'y Gen. No. U71-83. 

Board prohibited from placing terms on 
probationer not required by court. — The 
Board of Probation (now Board of Correc- 
tions) or its agents may not place on a 
prisoner, in connection with his probation, 
any terms or conditions not required of him 
by court order passed by the trial judge at 
the conclusion of the hearing held for the 
purpose of considering his probation. 
1958-59 Op. Att'y Gen. p. 223. 

Revocation. — Board has jurisdiction to 
revoke "probation" or conditional release 
granted by the board; but during that period 
in which the inmate is serving a portion of 
the sentence on probation ordered by the 
court, the court has jurisdiction of revoca- 
tion proceedings. 1970 Op. Att'y Gen. No. 
70-201. 

Some courts excluded from working with 
probation supervisors. — Courts in which 
state offenses cannot be tried are excluded 
from working with the probation supervi- 
sors. 1979 Op. Att'y Gen. No. U79-27. 

Authority of county recorder's court. — 
The county recorder's court does not have 
authority to place persons convicted of traf- 
fic offenses under the supervision of proba- 
tion supervisors of the Department of Of- 
fender Rehabilitation (Corrections). 1979 
Op. Att'y Gen. No. U79-27. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal 
Law, §§ 567-579. 63A Am. Jur. 2d, Public 
Officers and Employees, § 460. 



C.J.S. — 24 C.J.S., Criminal Law, §§ 1459, 
1480, 1503, 1511, 1549-1568. 



266 



42-8-34.1 PROBATION 42-8-34.1 

ALR. — Power of trial court to change Propriety of condition of probation which 

sentence after affirmance, 23 ALR 536. requires defendant convicted of crime of 

Constitutionality of statute conferring on violence to make reparation to injured vio 

court power to suspend sentence, 26 ALR dm, 79 ALR3d 976. 

399; 101 ALR 402; 109 ALR 1048; 132 ALR Propriety of conditioning probation upon 

819; 158 ALR 1315. defendant's posting of bond guaranteeing 

Imposition or enforcement of sentence compliance with terms of probation, 79 

which has been suspended without author- ALR3d 1068. 

ity, 141 ALR 1225. Validity of requirement that, as condition 

Propriety and effect of court's indication of probation, defendant submit to warrant- 
to jury that court would suspend sentence, 8 less searches, 79 ALR3d 1083. 
ALR2d 1001. Right of defendant sentenced after revo- 

Consideration of accused's juvenile court cation of probation to credit for jail time 

record in sentencing for offense committed served as a condition of probation, 99 

as adult, 64 ALR3d 1291. ALR3d 781. 

Inherent power of court to suspend for Appealability of order suspending imposi- 

indefinite period execution of sentence in tion or execution of sentence, 51 ALR4th 

whole or in part, 73 ALR3d 474. 939. 

42-8-34.1. Requirements for revocation of probated or suspended sen- 
tence; restitution or fines; limitation on probation supervision. 

(a) Notwithstanding any other provision of law, no court may revoke any 
part of any probated or suspended sentence unless the defendant admits 
the violation as alleged or unless the evidence produced at the revocation 
hearing establishes by a preponderance of the evidence the violation or 
violations alleged. 

(b) At any revocation hearing, upon proof that the defendant has 
violated any provision of probation or suspension other than by commission 
of a new felony offense, the court shall consider the use of alternatives to 
include community service, intensive probation, diversion centers, proba- 
tion detention centers, special alternative incarceration, or any other 
alternative to confinement deemed appropriate by the court or as provided 
by the state or county. In the event the court determines that the defendant 
does not meet the criteria for said alternatives, the court may revoke the 
balance of probation or not more than two years in confinement, whichever 
is less. 

(c) If the violation of probation or suspension alleged and proven by a 
preponderance of the evidence or the defendant's admission is the 
commission of a felony offense or the violation of a special condition 
imposed pursuant to this Code section, notwithstanding any other provision 
of law, the court may revoke no more than the lesser of the balance of 
probation or the maximum time of the sentence authorized to be imposed 
for the crime constituting the violation of the probation. 

(d) The payment of restitution or reparation, costs, or fines ordered by 
the court may be payable in one lump sum or in periodic payments, as 
determined by the court after consideration of all the facts and circum- 
stances of the case and of the defendant's ability to pay. Such payments 

267 



42-8-34.1 



PENAL INSTITUTIONS 



42-8-34.1 



shall, in the discretion of the sentencing judge, be made either to the clerk 
of the sentencing court or, if the sentencing court is a probate court, state 
court, or superior court, to the probation office serving said court. 

(e) In no event shall an offender be supervised on probation for more 
than a total of two years for any one offense or series of offenses arising out 
of the same transaction, whether before or after confinement, except as 
provided by paragraph (2) of subsection (a) of Code Section 17-10-1. (Code 
1981, § 42-8-34.1, enacted by Ga. L. 1988, p. 1911, § 1; Ga. L. 1989, p. 855, 
§ 1; Ga. L. 1992, p. 3221, § 6.) 

Law reviews. — For note on 1989 amend- 
ment of this Code section, see 6 Ga. St. U.L. 
Rev. 287 (1989). 

JUDICIAL DECISIONS 



Probation revocation's two year limitation. 

— Where, after defendant's probation revo- 
cation hearing, the trial court ordered de- 
fendant to serve six months in jail for each 
of the seven probation violations found to 
total three and one-half years, that order 
violated the plain words of subsection (b), 
limiting confinement for probation revoca- 
tion to no more than two years. Cockrell v. 
Brown, 263 Ga. 345, 433 S.E.2d 585 (1993). 

Burden is on the state to prove a violation 
of probation by a preponderance of the 
evidence. Farmer v. State, 216 Ga. App. 515, 
455 S.E.2d 297 (1995). 

Effect of change in quantum of proof. — 
That the quantum of proof necessary to 
revoke probation has been changed from 
"slight evidence" to "a preponderance of 
the evidence" does not affect the rule that a 
ruling in favor of the probationer, continu- 
ing rather than revoking his probation, has 
no collateral estoppel effect in a subsequent 
criminal trial. State v. Jones, 196 Ga. App. 
896, 397 S.E.2d 209 (1990). 

Authority to order full sentence. — The 
municipal court was not authorized to order 
the full sentence into execution upon revo- 
cation of a suspended sentence. Hughes v. 
Town of Tyrone, 211 Ga. App. 616, 440 
S.E.2d58 (1994). 

Violation of special condition. — Where 
the violation of probation results solely from 
infraction of a special condition, not from 
commission of a felony offense, the revoca- 
tion court is authorized by subsection (c) to 
revoke no more than the balance of defen- 



dant's probation. Gearinger v. Lee, 266 Ga. 
167, 465 S.E.2d 440 (1996). 

Violation not established by preponder- 
ance of the evidence. — Where defendant's 
mother was also a previously convicted drug 
violator; the cocaine and money were in 
defendant's mother's possession; nothing 
was found on defendant's person; and dur- 
ing the period of time in which the house 
was under surveillance, defendant had not 
been seen entering or leaving the house, this 
evidence did not establish by a preponder- 
ance of the evidence that defendant violated 
his probation by possessing cocaine with 
intent to distribute. Anderson v. State, 212 
Ga. App. 329, 442 S.E.2d 268 (1994). 

Where probationer both committed a fel- 
ony and violated a special condition, the 
revocation court was authorized to dispose 
of probationer as having either violated a 
special condition or committed a felony. 
Manville v. Hampton, 266 Ga. 857, 471 
S.E.2d872 (1996). 

Evidence inadmissible when untimely no- 
tice to defendant. — Sentence of defendant 
to confinement for two years, eight months, 
and fifteen days upon revocation of proba- 
tion was reversed because it exceeded the 
two-year limitation of this section. Gordon v. 
State, 217 Ga. App. 271, 456 S.E.2d 761 
(1995). 

Cited in Ledford v. State, 189 Ga. App. 
148, 375 S.E.2d 280 (1988); Eubanks v. State, 
197 Ga. App. 731, 399 S.E.2d 290 (1990); 
Mays v. State, 200 Ga. App. 457, 408 S.E.2d 
714 (1991); Riggins v. State, 206 Ga. App. 



268 



42-8-34.2 PROBATION 42-8-34.2 

239, 424 S.E.2d 879 (1992); Penaherrera v. (1993); Derrer v. Anthony, 265 Ga. 892, 463 
State, 211 Ga. App. 162, 438 S.E.2d 661 S.E.2d 690 (1995). 

OPINIONS OF THE ATTORNEY GENERAL 

Violation of diversion center regulations. The "two year" provision of subsection 
— If the conditions of probation include a (b) would not apply to probation violations 
requirement that the probationer obey the committed by persons assigned to a diver- 
rules and regulations of a diversion center, sion center as a part of their probated sen- 
up to six months of probation time may be tence. 1988 Op. Att'y Gen. No. U88-16 (ren- 
revoked under subsection (b) if the proba- dered prior to 1989 amendment of 
tioner violates those rules and regulations. subsection (b)) 
1988 Op. Att'y Gen. No. U88-16 (rendered 
prior to 1989 amendment of subsection 
(b)). 

RESEARCH REFERENCES 

Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal ALR. — Who may institute proceedings to 

Law, §§ 572, 574, 578, 579. revoke probation, 21 ALR5th 275. 

C.J.S. — 24 C.J.S., Criminal Law, 
§§ 1549-1568. 24B Criminal Law, §§ 2004, 
2005, 2007. 

42-8-34.2. Delinquency of defendant in payment of fines, costs, or restitu- 
tion or reparation; costs of garnishment. 

(a) In the event that a defendant is delinquent in the payment of fines, 
costs, or restitution or reparation, as was ordered by the court as a condition 
of probation, the defendant's probation officer is authorized, but not 
required, to execute a sworn affidavit wherein the amount of arrearage is set 
out. In addition, the affidavit shall contain a succinct statement as to what 
efforts the department has made in trying to collect the delinquent 
amount. The affidavit shall then be submitted to the sentencing court for 
approval. Upon signature and approval of the court, said arrearage shall 
then be collectable through issuance of a writ of fieri facias by the clerk of 
the sentencing court; and the department may enforce such collection 
through any judicial or other process or procedure which may be used by 
the holder of a writ of execution arising from a civil action. 

(b) This Code section provides the state with remedies in addition to all 
other remedies provided for by law; and nothing in this Code section shall 
preclude the use of any other or additional remedy in any case. 

(c) No clerk of any court shall be authorized to require any deposit of 
cost or any other filing or service fee as a condition to the filing of a 
garnishment action or other action or proceeding authorized under this 
Code section. In any such action or proceeding, however, the clerk of the 
court in which the action is filed shall deduct and retain all proper court 
costs from any funds paid into the treasury of the court, prior to any other 
disbursement of such funds so paid into court. (Code 1981, § 42-8-34.2, 

269 



42-8-35 PENAL INSTITUTIONS 42-8-35 

enacted by Ga. L. 1990, p. 1331, § 1; Ga. L. 1991, p. 94, § 42; Ga. L. 1991, 
p. 1051, § 1.) 

Editor's notes. — Ga. L. 1990, p. 1331, § 2 July 1, 1990, as well as sentences entered on 
provides that this Code section shall apply or after that date, 
with respect to sentences entered prior to 

42-8-35. Terms and conditions of probation. 

The court shall determine the terms and conditions of probation and 
may provide that the probationer shall: 

(1) Avoid injurious and vicious habits; 

(2) Avoid persons or places of disreputable or harmful character; 

(3) Report to the probation supervisor as directed; 

(4) Permit the supervisor to visit him at his home or elsewhere; 

(5) Work faithfully at suitable employment insofar as may be possible; 

(6) Remain within a specified location; 

(7) Make reparation or restitution to any aggrieved person for the 
damage or loss caused by his offense, in an amount to be determined by 
the court. Unless otherwise provided by law, no reparation or restitution 
to any aggrieved person for the damage or loss caused by his offense shall 
be made if the amount is in dispute unless the same has been adjudi- 
cated; 

(8) Make reparation or restitution as reimbursement to a municipality 
or county for the payment for medical care furnished the person while 
incarcerated pursuant to the provisions of Article 3 of Chapter 4 of this 
title. No reparation or restitution to a local governmental unit for the 
provision of medical care shall be made if the amount is in dispute unless 
the same has been adjudicated; 

(9) Repay the costs incurred by any municipality or county for 
wrongful actions by an inmate covered under the provisions of paragraph 
(1) of subsection (a) of Code Section 42-4-71; 

(10) Support his legal dependents to the best of his ability; 

(11) Violate no local, state, or federal laws and be of general good 
behavior; and 

(12) If permitted to move or travel to another state, agree to waive 
extradition from any jurisdiction where he may be found and not contest 
any effort by any jurisdiction to return him to this state. (Ga. L. 1956, p. 
27, § 10; Ga. L. 1958, p. 15, § 11A; Ga. L. 1965, p. 413, § 3; Ga. L. 1992, 
p. 2125, § 4; Ga. L. 1992, p. 2942, § 2.) 

270 



42-8-35 



PROBATION 



42-8-35 



Cross references. — Prohibition against 
possession of firearms by convicted felons, 
§ 16-11-131. Payment of fine as condition to 
probation for felony conviction, § 17-10-8. 

Code Commission notes. — Pursuant to 
Code Section 28-9-5, in 1992, paragraph (8), 
as added by Ga. L. 1992, p. 2942, was redes- 
ignated as paragraph (9) and the following 
paragraphs were redesignated accordingly, 
and "42-4-71" was substituted for "42-4-51" 



in present paragraph (9). 

Law reviews. — For article, "A Review of 
Georgia's Probation Laws," see 6 Ga. St. BJ. 
255 (1970). 

For note, "Limitations Upon Trial Court 
Discretion in Imposing Conditions of Proba- 
tion," see 8 Ga. L. Rev. 466 (1974). For note 
on 1992 amendment of this Code section, 
see 9 Ga. St. U.L. Rev. 310 (1992). 



JUDICIAL DECISIONS 



Analysis 



General Consideration 
Probation Terms and Conditions 

1. In General 

2. Avoid Injurious and Vicious Habits 

3. Confinement to Specified Location 

4. Reparation or Restitution 
Revocation of Probation 

1. In General 

2. Procedural Requirements 

3. Violation of Rules or Regulations 



General Consideration 

Cited in Reynolds v. State, 101 Ga. App. 
715, 115 S.E.2d 214 (1960); O'Quinn v. 
State, 121 Ga. App. 231, 173 S.E.2d 409 
(1970); Raines v. State, 130 Ga. App. 1, 202 
S.E.2d 253 (1973); State v. Collett, 232 Ga. 
668, 208 S.E.2d 472 (1974); P.R. v. State, 133 
Ga, App. 346, 210 S.E.2d 839 (1974); Gilbert 
v. State, 137 Ga. App. 754, 225 S.E.2d 86 
(1976); Bennett v. State, 141 Ga. App. 795, 
234 S.E.2d 327 (1977); Eubanks v. State, 144 
Ga. App. 152, 241 S.E.2d 6 (1977); Smith v. 
State, 148 Ga. App. 634, 252 S.E.2d 62 
(1979); Allen v. State, 150 Ga. App. 109, 257 
S.E.2d 5 (1979); Stephens v. State, 245 Ga. 
835, 268 S.E.2d 330 (1980); Cannon v. State, 
246 Ga. 754, 272 S.E.2d 709 (1980); Johnson 
v. State, 162 Ga. App. 226, 291 s!E.2d 94 
(1982); Malcom v. State, 162 Ga. App. 587, 
291 S.E.2d 756 (1982); In re J.C., 163 Ga. 
App. 822, 296 S.E.2d 117 (1982); Shaw v. 
State, 164 Ga. App. 208, 296 S.E.2d 765 
(1982); Smith v. State, 164 Ga. App. 384, 297 
S.E.2d 738 (1982); Davis v. State, 172 Ga. 
App. 787, 324 S.E.2d 767 (1984); Moore v. 
Kemp, 809 F.2d 702 (11th Cir. 1987); Wilson 
v. State, 188 Ga. App. 731, 374 S.E.2d 345 
(1988); Burke v. State, 201 Ga. App. 50, 410 
S.E.2d 164 (1991). 



Probation Terms and Conditions 

1. In General 

Authority of court to set terms and condi- 
tions. — This section permits the court to 
determine the terms and conditions of pro- 
bation, and lists ten conditions of probation. 
Parkerson v. State, 156 Ga. App. 440, 274 
S.E.2d 799 (1980). 

This section is not exclusive in its provi- 
sions, but places upon the court authority to 
set terms of probation and thereafter lists 
certain conditions which the court may im- 
pose if it sees fit. George v. State, 99 Ga. App. 
892, 109 S.E.2d 883 (1959); Gay v. State, 101 
Ga. App. 225, 113 S.E.2d 223 (1960); 
Falkenhainer v. State, 122 Ga. App. 478, 177 
S.E.2d 380 (1970); Marshall v. State, 127 Ga. 
App. 805, 195 S.E.2d 469 (1972); Geiger v. 
State, 140 Ga. App. 800, 232 S.E.2d 109 
(1976). 

Trial judge is not limited to imposition of 
only those restrictions enumerated in this 
section. Clackler v. State, 130 Ga. App. 738, 
204 S.E.2d 472 (1974); Giddens v. State, 156 
Ga. App. 258, 274 S.E.2d 595 (1980); 
Parkerson v. State, 156 Ga. App. 440, 274 
S.E.2d 799 (1980). 

Constitutionality of polygraph test re- 
quirement. — A condition requiring proba- 



271 



42-8-35 



PENAL INSTITUTIONS 



42-8 35 



Probation Terms and Conditions (Cont'd) 
1. In General (Cont'd) 

tioner to submit to polygraph tests does not 
violate defendants' fifth amendment rights, 
and the condition may be imposed, in the 
discretion of the trial judge, with no more 
than a general finding of the court that it is 
reasonably necessary to accomplish the pur- 
pose of probation. Mann v. State, 154 Ga. 
App. 677, 269 S.E.2d 863 (1980). 

Confinement not "incarceration." — Sen- 
tence of defendant based on first offender 
treatment, to five years' probation, condi- 
tioned upon successive periods of confine- 
ment in a detention center, a diversion cen- 
ter, and in defendant's house under 
intensive supervision, was authorized and 
did not constitute "incarceration," which 
refers to continuous and uninterrupted cus- 
tody in a jail or penitentiary. Penaherrera v. 
State, 211 Ga. App. 162, 438 S.E.2d 661 
(1993). 

Condition precluding contact between 
perpetrator of sexual crime and victim. — 
Imposition as a condition of probation that 
defendant who was convicted of aggravated 
child molestation have no direct or indirect 
contact with his seven-year-old daughter un- 
til she reached the age of majority was within 
the discretion of the court, and was not a 
violation of defendant's constitutional 
rights. Tuttle v. State, 215 Ga. App. 396, 450 
S.E.2d863 (1994). 

Condition of probation that defendant 
live with parents during course of probated 
sentences implicitly imposes restriction on 
defendant's parents, i.e., that they maintain 
a domicile for defendant, and is unenforce- 
able. Ward v. State, 248 Ga. 60, 281 S.E.2d 
503 (1981). 

Condition that defendant wear special 
bracelet. — The list in this section of condi- 
tions which may be imposed is not exclusive 
and the court had authority to impose the 
requirement that defendant wear a fluores- 
cent pink plastic bracelet imprinted with the 
words "D.U.I. CONVICT" Ballenger v. 
State, 210 Ga. App. 627, 436 S.E.2d 793 
(1993). 

Incarceration not imposable as condition 
for probation. — In the absence of express 
statutory authority recognizing continuous 
and uninterrupted incarceration in a jail or 
penitentiary as a viable condition of proba- 



tion, the imposition of any term of continu- 
ous and uninterrupted incarceration in a jail 
or penitentiary as a special condition of 
probation is unauthorized by law. Pitts v. 
State, 206 Ga. App. 635, 426 S.E.2d 257 
(1992). 

2. Avoid Injurious and Vicious Habits 

Prohibition against alcohol consumption. 

— Prohibition against consumption of alco- 
hol as condition of probation is authorized 
by paragraph (1) of this section. An alco- 
holic is not exempt from such a condition. 
Mock v. State, 156 Ga. App. 763, 275 S.E.2d 
393 (1980). 

Condition against engaging in profession 
for certain period. — Condition that defen- 
dant not engage in practice of law for a 
period of one year is within sound discretion 
of the court in probating the sentence, and 
is authorized under this section and 
§ 42-8-34. Yarbrough v. State, 119 Ga. App. 
46, 166S.E.2d35 (1969). 

3. Confinement to Specified Location 

Diversion center. — A probationer is not 
subject to prosecution for the felony offense 
of escape, after he fails to return to a diver- 
sion center from which he is given permis- 
sion to leave. Chandler v. State, 257 Ga. 775, 
364S.E.2d273 (1988). 

Banishment. — Banishment of one con- 
victed of crime from county or counties may 
be a reasonable condition of probation. 
Parkerson v. State, 156 Ga. App. 440, 274 
S.E.2d799 (1980). 

However, no section or other authority 
grants jurisdiction to trial court to banish a 
person other than the convicted criminal as 
a condition of his probation. Parkerson v. 
State, 156 Ga. App. 440, 274 S.E.2d 799 
(1980). 

Threat of refusal to abide by banishment. 

— Where trial court imposes 20 year sen- 
tence with ten years thereof to be probated, 
conditional upon banishment of defendant 
from judicial circuit, threats by defendant 
not to abide by probational banishment au- 
thorize judge to impose sentence of 20 years. 
Garland v. State, 160 Ga. App. 97, 286 S.E.2d 
330 (1981). 

4. Reparation or Restitution 

Constitutionality of restitution condition. 

— A sentence on a conviction for a fraudu- 



272 



42-8-35 



PROBATION 



42-8-35 



lent disposition of crops subject to a land- 
lord's lien under § 44-14-348, which pro- 
vides for probation in lieu of a prison 
sentence on the condition that the landlord 
is repaid, is a valid and legal sentence and is 
not violative of Ga. Const. 1945, Art. I, Sec. I, 
Para. XXI (see Ga. Const. 1983, Art. I, Sec. I, 
Para. XXIII). Davis v. State, 53 Ga. App. 325, 
185 S.E. 400 (1936). 

Probation may be conditioned upon pay- 
ment of expenses in accordance with the 
conditions of probation. Giddens v. State, 
156 Ga. App. 258, 274 S.E.2d 595 (1980), 
cert denied, 450 U.S. 1026, 101 S. Ct. 1733, 
68 L. Ed. 2d 220 (1981). 

Serving sentence outside detention center. 
— The court may probate sentence to per- 
mit convicted person to serve sentence out- 
side confines of place of detention "on such 
conditions as it may see fit," and this vests a 
broad power in the trial court, and restitu- 
tion to an injured person or his property 
cannot be said to be a condition in violation 
of that power. Henry v. State, 77 Ga. App. 
735, 49 S.E.2d 681 (1948). 

Notice and hearing requirements. — Prior 
notice and an opportunity to be heard are 
prerequisite where restitution is ordered by 
court to be paid out of a probationer's 
weekly salary and the penalty for failure to 
pay is imprisonment. Morgan v. Wofford, 
472F.2d822 (5th Cir. 1973). 

Effect of fixing amount of restitution re- 
quired to be paid under paragraph (7) of 
this section, without notice to the proba- 
tioner and without any opportunity for pro- 
bationer to question or appeal amount, es- 
pecially where criminal sanctions may be 
involved, violates fourteenth amendment, 
since due process requires notice and an 
opportunity for hearing appropriate to the 
nature of the case when the state seeks to 
deprive a person of property or liberty. Mor- 
gan v. Wofford, 472 F.2d 822 (5th Cir. 1973). 

Contesting restitution condition. — Re- 
course for defendant who does not agree to 
amount of restitution ordered by trial court 
is to contest the issue at the time the condi- 
tion is imposed. Johnson v. State, 156 Ga. 
App. 511, 274 S.E.2d 669 (1980); Johnson v. 
State, 157 Ga. App. 155, 276 S.E.2d 667 
(1981). 

Where appellant failed to dispute or con- 
test amount of restitution ordered by trial 
court, restitution was properly imposed with- 



out an adjudication. Cobb v. State, 162 Ga. 
App. 314, 291 S.E.2d 390 (1982); Patrick v. 
State, 184 Ga. App. 260, 361 S.E.2d 251 
(1987). 

Where the defendant voiced no objection 
in the trial court to the interest charged as 
part of the amount of restitution, she may 
not complain of it on appeal. Corbin v. State, 
202 Ga. App. 464, 415 S.E.2d 14 (1992). 

Where defendant failed to dispute the 
amount of restitution ordered as a condition 
of probation for theft by taking, that the 
state failed to prove the amount at trial is of 
no consequence, because the state was only 
required to prove that defendant stole in 
excess of $200.00 (now $500.00) under 
§ 16-8-12(a)(l). Johnston v. State, 165 Ga. 
App. 792, 302 S.E.2d 708 (1983). 

A defendant is only entitled to adjudica- 
tion of the restitutionary amount when that 
amount is in dispute. Johnston v. State, 165 
Ga. App. 792, 302 S.E.2d 708 (1983); Will- 
iams v. State, 180 Ga. App. 854, 350 S.E. 2d 
837 (1986). 

Where the amount of medical expenses of 
a juvenile assault victim is undisputed based 
on the uncontradicted testimony of the vic- 
tim in the disposition hearing, there is no 
error in ordering restitution. C.P. v. State, 
167 Ga. App. 374, 306 S.E.2d 688 (1983). 

Appellant's plea of guilty to accusation 
and execution of written acknowledgment of 
conditions of probation did not constitute 
an agreement to the value of stolen property 
for purposes of restitution. Johnson v. State, 
156 Ga. App. 511, 274 S.E.2d 669 (1980). 

Restitution as condition. — While defen- 
dant may not be sentenced to make restitu- 
tion, the court may make restitution a con- 
dition of probation. Biddy v. State, 138 Ga. 
App. 4, 225 S.E.2d 448 (1976). 

Determining nature of restitution order. 
— Elements of T. 17, Ch. 14, may be used to 
discern nature of order of restitution made 
under this section. This can be done since 
under this section "restitution" was an au- 
thorized condition of probation and the 
enactment of T. 17, Ch. 14 "is merely a more 
detailed enactment regarding restitution." 
Newton v. Fred Haley Poultry Farm, 15 
Bankr. 708 (Bankr. N.D. Ga. 1981). 

Condition for restoration of driver's li- 
cense. — Restitution of damages to other 
persons involved in an automobile accident 
may not be imposed as a condition for 



273 



42-8-35 



PENAL INSTITUTIONS 



42-8-35 



Probation Terms and Conditions (Cont'd) 
4. Reparation or Restitution (Cont'd) 

restoration of a driver's license in such cases 
where the amount is in dispute, unless the 
same has been adjudicated, because a party 
may be guilty of violating the traffic laws and 
be found not liable in a civil suit for dam- 
ages. Payne v. State, 138 Ga. App. 358, 226 
S.E.2d 152 (1976). 

Restitution permissible despite schedul- 
ing obligation owed creditor. — A trial court 
is empowered to stipulate as a condition of 
probation that restitution shall be made to 
the aggrieved party despite defendant hav- 
ing scheduled the obligation owing creditor 
in bankruptcy proceedings. Marshall v. State, 
127 Ga. App. 805, 195 S.E.2d 469 (1972). 

Restitution based on untried charge im- 
proper. — Where there was no accusation or 
evidence relating to a particular theft, trial 
court cannot order restitution for that theft 
as a condition of probation even if the court 
was aware of an untried charge relating to 
that theft. Robinson v. State, 169 Ga. App. 
763, 315S.E.2d277 (1984). 

Repayment of salary. — The trial court 
may, as a condition of probation, require 
repayment of the salary received by a county 
officer while he was suspended. LaPann v. 
State, 167 Ga. App. 288, 306 S.E.2d 373 
(1983). 

Restitution properly adjudicated. — See 
Lee v. State, 166 Ga. App. 485, 304 S.E.2d 
446 (1983). 

Revocation of Probation 

1. In General 

Revocation of purported probation sen- 
tence. — Sentences for criminal offenses 
should be certain, definite, and free from 
ambiguity, and, where the contrary is the 
case, benefit of doubt should be given to the 
accused. Hence, trial court erred in revoking 
purported probation sentence since con- 
strued as a whole, the sentence was an 
alternative one and the defendant was to be 
discharged upon payment of fines and costs. 
Favors v. State, 95 Ga. App. 318, 97 S.E.2d 
613 (1957). 

Service of sentence on probation as priv- 
ilege. — Service of sentence on probation is 
conferred as privilege and cannot be de- 
manded as a matter of right, but this does 



not mean that a defendant's liberty is some- 
thing that can be the subject matter of whim 
or fancy of the trial judge. Cross v. Huff, 208 
Ga. 392, 67 S.E.2d 124 (1951) (decided 
under former Code 1933, §§ 27-2702 and 
27-2705 prior to revision by Ga. L. 1956, p. 
27, §§ 1,21). 

2. Procedural Requirements 

Authority of judge to suspend or probate 
sentence. — A judge imposing a sentence is 
granted power to suspend or probate the 
sentence under such rules and regulations 
as he thinks proper. Cross v. Huff, 208 Ga. 
392, 67S.E.2d 124 (1951). 

The judge has the right and authority to 
revoke the suspension or probation, after 
notice and a hearing, when the defendant 
violates any of the rules and regulations 
prescribed by the court. Simmons v. State, 96 
Ga. App. 718, 101 S.E.2d 111 (1957) (decid- 
ed under former Code 1933, §§ 27-2702 and 
27-2705, prior to revision by Ga. L. 1956, p. 
27, §§ 1, 21). 

Notice or hearing required for sentence 
revocation. Balkcom v. Gunn, 206 Ga. 167, 
56 S.E.2d 482 (1949) (decided under former 
Code 1933, T. 27, including §§ 27-2702 and 
27-2705, prior to revision by Ga. L. 1956, p. 
27, §§ 1,21). 

Sufficiency of notice. — Notice must be 
sufficient to inform defendant of the man- 
ner in which he has violated his parole and 
give him an opportunity to defend. George 
v. State, 99 Ga. App. 892, 109 S.E.2d 883 
(1959). 

Some evidence required for revocation of 
probation. — While the trial court has a wide 
discretion in revoking a probated sentence, 
and while only slight evidence will support a 
judgment of revocation, some evidence that 
the defendant violated the terms of his pro- 
bated sentence as charged in the notice 
given him of the revocation hearing is re- 
quired. George v. State, 99 Ga. App. 892, 109 
S.E.2d 883 (1959); Gay v. State, 101 Ga. App. 
225, 113S.E.2d223 (1960). 

Evidence held insufficient. — Evidence 
was insufficient where notice contained in 
special order of arrest charged defendant 
with manufacturing illicit whiskey, but no 
evidence was introduced; mere fact that de- 
fendant was operating a truck loaded with 
sugar, and he refused to give name of pur- 
chaser or seller of the sugar and had no bill 



274 



42-8-35 



PROBATION 



42-8-35 



of lading or bill of sale for the sugar, which 
facts were perfectly consistent with the de- 
fendant's contention that he was doing some 
hauling, was of itself not sufficient to autho- 
rize revocation of probation order. George v. 
State, 99 Ga. App. 892, 109 S.E.2d 883 
(1959). 

Where notice contained in order of arrest 
failed to charge defendant with violation of 
the provision of the probation order prohib- 
iting him from leaving the state without 
permission, mere fact that he was stopped in 
Alabama was not sufficient ground for revo- 
cation thereof. George v. State, 99 Ga. App. 
892, 109S.E.2d883 (1959). 

Matters to be considered in revoking pro- 
bation. — Since the court cannot revoke a 
probated sentence unless the sentence has 
conditions sufficiently definite to be enforce- 
able, and unless the conditions have not 
been complied with, and since the defen- 
dant is entitled to notice and an opportunity 
to be heard on the charge which is brought 
against him, only those alleged violations 
which are terms of the original sentence, 
and notice of the violation of which has been 
given the probationer, may be considered by 
the court on the hearing to revoke the 
probated sentence. George v. State, 99 Ga. 
App. 892, 109 S.E.2d 883 (1959). 

3. Violation of Rules or Regulations 

Need for prescribed rules and regula- 
tions. — Where no rules or regulations are 
prescribed in the alleged suspended or pro- 
bated sentence, and no violation of a pre- 
scribed rule or regulation is alleged, the 
court is without authority to order the de- 
fendant incarcerated upon the theory that 
he has violated the terms and conditions of a 
probation sentence. Morgan v. Foster, 208 
Ga. 630, 68 S.E.2d 583 (1952); Simmons v. 
State, 96 Ga. App. 718, 101 S.E.2d 111 
(1957) (decided under former Code 1933, 
§§ 27-2702, 27-2705, and 27-2706, prior to 
revision by Ga. L. 1956, p. 27, §§ 1, 21). 

Probated sentences must show rules and 
regulations prescribed so that a violation of 
such rules and regulations will revoke pro- 
bation. Simmons v. State, 96 Ga. App. 718, 
101 S.E.2d 111 (1957) (decided under 
former Code 1933, §§ 27-2702 and 27-2705, 
prior to revision by Ga. L. 1956, p. 27, §§ 1, 
21); George v. State, 99 Ga. App. 892, 109 
S.E.2d883 (1959). 



Discretion to impose non-specified restric- 
tions. — The court has authority to impose 
restrictions not specifically listed in this sec- 
tion, and among them the restriction that 
the defendant shall not violate the penal 
laws of the state. George v. State, 99 Ga. App. 
892, 109S.E.2d883 (1959). 

Strict construction. — Statutes providing 
for suspension of a sentence or probation of 
defendant must be strictly followed. Cross v. 
Huff, 208 Ga. 392, 67 S.E.2d 124 (1951) 
(decided under former Code 1933, 
§§ 27-2702 and 27-2705, prior to revision by 
Ga. L. 1956, p. 27, § 1, 21). 

Language held not so vague as to be 
unenforceable. — A provision in a probation 
sentence that the "sentence is suspended on 
payment of fine and on the further condi- 
tion that defendant not violate laws of this 
state, and until further order of this court," 
is not so vague, indefinite, ambiguous, and 
uncertain as to be unenforceable; the laws of 
this state being fixed by statute and pre- 
sumed to be within the knowledge of every 
competent person. Bryant v. State, 89 Ga. 
App. 891, 81 S.E.2d 556 (1954) (decided 
under former Code 1933, § 27-2705). 

Probation sentence held unenforceable. 
— If the words, "maintain a correct life" are 
intended to impose any condition upon the 
defendant over and beyond compliance with 
the rules prescribed for his conduct by the 
court, the words are too vague, indefinite, 
and uncertain to be given any construction 
or application. Morgan v. Foster, 208 Ga. 
630, 68 S.E.2d 583 (1952) (decided under 
former Code 1933, §§ 27-2705 and 27-2706, 
prior to revision by Ga. L. 1956, p. 27, § 21). 

Condition applicable for probated sen- 
tence applies to suspended sentence. — A 
condition which would be authorized in the 
case of a probated sentence would be autho- 
rized in the case of a suspended sentence. 
Falkenhainer v. State, 122 Ga. App. 478, 177 
S.E.2d 380 (1970). 

Releasing defendant without prescribing 
conditions or rules. — Where no conditions 
or rules are prescribed by the court for the 
conduct of the defendant, his release at 
direction of the court upon payment of a 
fine is not a suspended or probated sen- 
tence, but an unconditional discharge. The 
words, "until further order of the court," 
appearing in the sentence, are insufficient to 
constitute a suspended sentence or proba- 



275 



42-8-35 



PENAL INSTITUTIONS 



42-8-35 



Revocation of Probation (Cont'd) 
3. Violation of Rules or 
Regulations (Cont'd) 

tion. Morgan v. Foster, 208 Ga. 630, 68 
S.E.2d 583 (1952) (decided under former 



Code 1933, §§ 27-2705 and 27-2706 prior to 
revision by Ga. L. 1956, p. 27, § 21). 



OPINIONS OF THE ATTORNEY GENERAL 



Imposition of terms by board. — The 

board or its agents may not place on a 
prisoner in connection with his probation 
any terms or conditions not required of him 
by court order passed by the trial judge at 
the conclusion of the hearing held for the 
purpose of considering his probation. 
1958-59 Op. Att'y Gen. p. 223. 

The board, acting through the director of 
probation (now commissioner of correc- 
tions) and probation officers, is without au- 
thority to require of probationers under its 
supervision the execution of any waiver of 
any right of extradition or otherwise, or to 
impose upon them any condition not placed 
upon them by the trial judge in his proba- 
tion order. 1958-59 Op. Att'y Gen. p. 223. 

Screening for virus as probation condi- 
tion. — Confidential screening for the 
HTLV-III/LAV virus in convicted prostitutes 
may be required: ( 1 ) as a health measure by 
the Department of Human Resources, or (2) 
as a condition of probation by the sentenc- 
ing court. 1986 Op. Att'y Gen. No. 86-19. 

Imposition of fine payment. — A superior 
court judge may impose payment of a fine as 
a term and condition of probation for a 
defendant being treated under Art. 3 of this 
chapter. 1975 Op. Att'y Gen. No. U75-42. 

Banishment as condition. — The Supreme 
Court of this state has upheld a trial court's 
authority to impose banishment as a condi- 
tion of probation. 1979 Op. Att'y Gen. No. 
U79-8. 

List not exclusive. — The list of conditions 
of probation in this section is not exclusive. 
1979 Op. Att'y Gen. No. U79-8. 

Community service as condition. — A 
probated sentence providing for specified 
community service as a condition of proba- 
tion is permissible. 1979 Op. Att'y Gen. No. 
U79-8. 

Probationer contributing for probation su- 
pervisors' insurance. — A probationer can 
be required to pay by court order, as a 
condition of his/her probation, a reasonable 
amount toward the cost of maintaining in- 
surance to protect probation supervisors 



from personal liability should probationers 
be injured while performing court-ordered 
community service. 1983 Op. Att'y Gen. No. 
83-18. 

Covenant not to sue probation supervi- 
sors. — Probationer may be required to 
enter into covenant not to sue probation 
supervisors personally. A sentencing court 
may, in its discretion, require a probationer 
to enter into, as a condition of probation, a 
covenant not to sue probation supervisors in 
their personal capacity if the probationer is 
injured while performing court-ordered 
community service work. 1983 Op. Att'y 
Gen. No. 83-18. 

Reasonable supervision fee as condition. 
— Probationer's agreement to pay supervi- 
sion fee should be obtained at time of sen- 
tencing and should be recorded. But, re- 
gardless of whether probationer agrees, he 
can be required to pay reasonable supervi- 
sion fee as condition of probation. 1981 Op. 
Att'y Gen. No. 81-100. 

The statutory conditions in this Code sec- 
tion are not exclusive, and trial courts may, 
as a condition of probation, impose a proba- 
tion supervision fee. 1985 Op. Att'y Gen. No. 
U85-4. 

Collection of supervision fees by Depart- 
ment. — Department of Offender Rehabili- 
tation (Corrections) may not on its own 
initiative collect supervision fee from proba- 
tioners. 1981 Op. Att'y Gen. No. 81-100. 

Withholding "collection fee" from fines to 
offset costs. — Probation supervision fee 
collected pursuant to probation order of 
sentencing court does not have a statutory 
premise. Therefore, such a fee does not have 
to be paid into state treasury but, if permit- 
ted by probation order, could be retained by 
Department of Offender Rehabilitation 
(Corrections). 1981 Op. Att'y Gen. No. 
81-100. 

Use of restitution funds. — Pursuant to 
this section, funds collected for the purpose 
of restitution may be used only for that 
purpose. 1971 Op. Att'y Gen. No. 71-182. 

Returning funds to probationer. — When 



276 



42-8-35.1 



PROBATION 



42-8-35.1 



a trust of funds collected pursuant to this 
section fails of accomplishment, the funds 
should be returned to the probationer who 
is similar to the grantor of an implied or 
resulting trust. Op. Att'y Gen. No. 71-182. 

Return of small fund amount where pro- 
bationer not found. — Where neither the 



intended recipient nor the probationer can 
be found, and the sum collected pursuant to 
this section is quite small, the money should 
continue to be held, since the escheat pro- 
cedure would consume the fund. 1971 Op. 
Att'v Gen. No. 71-182. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal 
Law, §§ 567-579. 

C.J.S. — 24 C.J.S., Criminal Law, 
§§ 1549-1568. 

ALR. — Power to impose sentence with 
direction that after defendant shall have 
served part of time he be placed on proba- 
tion for the remainder of term, 147 ALR 
656. 

Propriety of conditioning probation or 
suspended sentence on defendant's refrain- 
ing from political activity, protest, or the like, 
45 ALR3d 1022. 

What constitutes "good behavior" within 
statute or judicial order expressly condition- 
ing suspension or sentence thereon, 58 
ALR3dll56. 

Propriety, in imposing sentence for origi- 
nal offense after revocation of probation, of 
considering acts because of which probation 
was revoked, 65 ALR3d 1100. 

Propriety of condition of probation which 
requires defendant convicted of crime of 
violence to make reparation to injured vic- 
tim, 79 ALR3d 976. 

Validity of requirement that, as condition 
of probation, indigent defendant reimburse 
defense costs, 79 ALR3d 1025. 

Propriety of conditioning probation upon 
defendant's posting of bond guaranteeing 
compliance with terms of probation, 79 
ALR3d 1068. 



Validity of requirement that, as condition 
of probation, defendant submit to warrant- 
less searches, 79 ALR3d 1083. 

Propriety of conditioning probation on 
defendant's not associating with particular 
person, 99 ALR3d 967. 

Propriety of conditioning probation on 
defendant's serving part of probationary pe- 
riod in jail or prison, 6 ALR4th 446. 

Propriety of requirement, as condition of 
probation, that defendant refrain from use 
of intoxicants, 19 ALR4th 1251. 

Power of court to revoke probation for 
acts committed after imposition of sentence 
but prior to commencement of probation 
term, 22 ALR4th 755. 

Propriety of conditioning probation on 
defendant's not entering specified geo- 
graphical area, 28 ALR4th 725. 

Propriety of conditioning probation on 
defendant's submission to polygraph or 
other lie detector testing, 86 ALR4th 709. 

Propriety of conditioning probation on 
defendant's submission to drug testing, 87 
ALR4th 929. 

Propriety, in criminal case, of Federal Dis- 
trict Court order restricting defendant's 
right to re-enter or stay in United States, 94 
ALR Fed. 619. 



42-8-35.1. Special alternative incarceration. 

(a) In addition to any other terms or conditions of probation provided 
for under this chapter, the trial judge may provide that probationers 
sentenced for felony offenses committed on or after July 1, 1993, to a period 
of time of not less than one year on probation as a condition of probation 
must satisfactorily complete a program of confinement in a "special 
alternative incarceration — probation boot camp" unit of the department 
for a period of 120 days computed from the time of initial confinement in 
the unit; provided, however, the department may release the defendant 
upon service of 90 days in recognition of excellent behavior. 



277 



42-8-35.1 PENAL INSTITUTIONS 42-8-35.1 

(b) Before a court can place this condition upon the sentence, an initial 
investigation will be completed by the probation officer which will indicate 
that the probationer is qualified for such treatment in that the individual 
does not appear to be physically or mentally disabled in a way that would 
prevent him from strenuous physical activity, that the individual has no 
obvious contagious diseases, that the individual is not less than 17 years of 
age nor more than 30 years of age at the time of sentencing, and that the 
department has granted provisional approval of the placement of the 
individual in the "special alternative incarceration — probation boot camp" 
unit. 

(c) In every case where an individual is sentenced under the terms of this 
Code section, the sentencing court shall, within its probation order, direct 
the department to arrange with the sheriff's office in the county of 
incarceration to have the individual delivered to a designated unit of the 
department within a specific date not more than 15 days after the issuance 
of such probation order by the court. 

(d) At any time during the individual's confinement in the unit, but at 
least five days prior to his expected date of release, the department will 
certify to the trial court as to whether the individual has satisfactorily 
completed this condition of probation. 

(e) Upon the receipt of a satisfactory report of performance in the 
program from the department, the trial court shall release the individual 
from confinement in the "special alternative incarceration — probation 
boot camp" unit. However, the receipt of an unsatisfactory report will be 
grounds for revocation of the probated sentence as would any other 
violation of a condition or term of probation. 

(f ) The satisfactory report of performance in the program from the 
department shall, in addition to the other requirements specified in this 
Code section, require participation of the individual confined in the unit in 
such adult education courses necessary to attain the equivalency of a grade 
five competency level as established by the State Board of Education for 
elementary schools. Those individuals who are mentally disabled as deter- 
mined by initial testing are exempt from mandatory participation. After the 
individual is released from the unit, it shall be a special condition of 
probation that the individual participate in an education program in the 
community until grade five level competency is achieved or active probation 
supervision terminates. It shall be the duty of the department to certify to 
the trial court that such individual has satisfactorily completed this condi- 
tion of probation while on active probation supervision. The receipt of an 
unsatisfactory report may be grounds for revocation of the probated 
sentence as would any other violation of a condition or term of probation. 
Under certain circumstances, the probationer may be exempt from this 
requirement if it is determined by the probation officer that community 
education resources are inaccessible to the probationer. (Ga. L. 1982, p. 

278 



42-8-35.2 



PROBATION 



42-8-35.2 



1097, § 1; Code 1981, § 42-8-35.1, enacted bv Ga. L. 1982, p. 1097, § 2; Ga. 
L. 1983, p. 3, § 31; Ga. L. 1984, p. 446, § 1; Ga. L. 1987, p. 654, § 1; Ga. L. 
1991, p. 1751, § 1; Ga. L. 1993, p. 444, § 1; Ga. L. 1993, p. 1664, § 1; Ga. 
L. 1995, p. 1302, § 14.) 



The 1995 amendment, effective July 1, 
1995, substituted "disabled" for "handi- 
capped" in subsection (b) and in the second 
sentence of subsection (f). 

Editor's notes. — Ga. L. 1982, p. 2283, § 2 
also enacted a Code Section 42-8-35.1, which 



was redesignated as Code Section 42-8-35.2 
byGa. L. 1983, p. 3, § 31. 

Law reviews. — For note on 1991 amend- 
ment of this Code section, see 8 Ga. St U.L. 
Rev. 161 (1992). 



JUDICIAL DECISIONS 



Incarceration not imposable as condition 
for probation. — In the absence of express 
statutory authority recognizing continuous 
and uninterrupted incarceration in a jail or 
penitentiary as a viable condition of proba- 
tion, the imposition of any term of continu- 
ous and uninterrupted incarceration in a jail 
or penitentiary as a special condition of 
probation is unauthorized by law. Pitts v. 
State, 206 Ga. App. 635, 426 S.E.2d 257 
(1992). 

Penalty for violation of diversion center 
regulations. — It was error to hold that a 
probationer's failure to abide by the diver- 
sion center's regulations made him liable for 
the felony offense of escape rather than for 
the mere revocation of his probation. Unsat- 



isfactory performance in the program would 
subject the probationer to revocation of 
probation as specified by § 42-8-38; however 
an alternative to revocation of probation 
would be the imposition of the more severe 
sanctions of § 16-10-52(a)(3). Where any 
uncertainty develops as to which penal 
clause is applicable, the accused is entitled to 
have the lesser of two penalties adminis- 
tered. Chandler v. State, 257 Ga. 775, 364 
S.E.2d 273 (1988). 

A person convicted of a misdemeanor may 
not be sentenced to attend a boot camp as a 
condition of probation. Johnson v. State, 267 
Ga. 77, 475 S.E.2d 595 (1996). 

Cited in Penaherrera v. State, 211 Ga. 
App. 162, 438 S.E.2d 661 (1993). 



42-8-35.2. Special term of probation; when imposed; revocation; suspen- 



sion. 



(a) Notwithstanding any other provisions of law, the court, when impos- 
ing a sentence of imprisonment after a conviction of a violation of 
subsection (b) or (d) of Code Section 16-13-30 or after a conviction of a 
violation of Code Section 16-13-31, shall impose a special term of probation 
of three years in addition to such term of imprisonment; provided, however, 
upon a second or subsequent conviction of a violation of the provisions of 
such Code sections as stated in this subsection, the special term of 
probation shall be six years in addition to any term of imprisonment. 

(b) A special term of probation imposed under this Code section may be 
revoked if the terms and conditions of probation are violated. In such 
circumstances the original term of imprisonment shall be increased by the 
period of the special term of probation and the resulting new term of 
imprisonment shall not be diminished by the time which was spent on 
special probation. A person whose special term of probation has been 
revoked may be required to serve all or part of the remainder of the new 



279 



42-8-35.3 PENAL INSTITUTIONS 42-8-35.3 

term of imprisonment. A special term of probation provided for in this 
Code section shall be in addition to, and not in lieu of, any other probation 
provided for by law and shall be supervised in the same manner as other 
probations as provided in this chapter. 

(c) Upon written application by the probationer to the trial court, the 
court may, in its discretion, suspend the balance of any special term of 
probation, provided that at least one-half of said special term of probation 
has been completed and all fines associated with the original sentence have 
been paid and all other terms of the original sentence and the terms of the 
special probation have been met by the probationer. (Ga. L. 1982, p. 2283, 
§ 1; Code 1981, § 42-8-35.1, enacted by Ga. L. 1982, p. 2283, § 2; Code 
1981, § 42-8-35.2, as redesignated by Ga. L. 1983, p. 3, § 31; Ga. L. 1997, p. 
143, § 42.) 

The 1997 amendment, effective March 28, effective January 25, 1983, redesignated this 
1997, part of an Act to correct errors and Code section, which was enacted as Code 
omissions in the Code, substituted "subsec- Section 42-8-35.1, as Code Section 42-8-35.2, 
tion (b) or (d)" for "subsection (b), (d), or since Ga. L. 1982, p. 1097, § 2 also enacted 
(f)" in subsection (a). a Code Section 42-8-35.1, and revised Ian- 
Editor's notes. — The 1983 amendment, guage. 

RESEARCH REFERENCES 

ALR. — Defendant's right to credit for center, or other restrictive environment as 
time spent in halfway house, rehabilitation condition of probation, 24 ALR4th 789. 

42-8-35.3. Conditions of probation for stalking or aggravated stalking. 

Notwithstanding any other terms or conditions of probation which may 
be imposed, a court sentencing a defendant to probation for a violation of 
Code Section 16-5-90 or 16-5-91 may impose one or more of the following 
conditions on such probation: 

(1) Prohibit the defendant from engaging in conduct in violation of 
Code Section 16-5-90 or 16-5-91; 

(2) Require the defendant to undergo a mental health evaluation and, 
if it is determined by the court from the results of such evaluation that the 
defendant is in need of treatment or counseling, require the defendant 
to undergo mental health treatment or counseling by a court approved 
mental health professional, mental health facility, or facility of the 
Department of Human Resources. Unless the defendant is indigent, the 
cost of any such treatment shall be borne by the defendant; or 

(3) Prohibit the defendant from entering or remaining present at the 
victim's school, place of employment, or other specified places at times 
when the victim is present. (Code 1981, § 42-8-35.3, enacted by Ga. L. 
1993, p. 1534, § 4.) 

280 



42-8-35.4 PROBATION 42-8-35.5 

Law reviews. — For note on 1993 enact- 
ment of this section, see 10 Ga. St. U.L. Rev. 
95 (1993). 

42-8-35.4. Confinement in probation detention center. 

(a) In addition to any other terms and conditions of probation provided 
for in this article, the trial judge may require that a defendant convicted of 
a felony and sentenced to a period of not less than one year on probation 
or a defendant who has been previously sentenced to probation for a 
forcible misdemeanor as defined in paragraph (7) of Code Section 16-1-3 or 
a misdemeanor of a high and aggravated nature and has violated probation 
or other probation alternatives and is subsequently sentenced to a period of 
not less than one year on probation shall complete satisfactorily, as a 
condition of that probation, a program of confinement in a probation 
detention center. Probationers so sentenced will be required to serve a 
period of confinement as specified in the court order, which confinement 
period shall be computed from the date of initial confinement in the 
probation detention center. 

(b) The court shall determine that the defendant is at least 17 years of 
age at the time of sentencing. 

(c) During the period of confinement, the department may transfer the 
probationer to other facilities in order to provide needed physical and 
mental health care or for other reasons essential to the care and supervision 
of the probationer or as necessary for the effective administration and 
management of its facilities. (Code 1981, § 42-8-35.4, enacted by Ga. L. 
1995, p. 627, § 1.) 

Effective date. — This Code section be- 
came effective April 18, 1995. 

42-8-35.5. Confinement in probation diversion center. 

(a) In addition to any other terms and conditions of probation provided 
in this article, the trial judge may require that probationers sentenced to a 
period of not less than one year on probation shall satisfactorily complete, 
as a condition of that probation, a program in a probation diversion center. 
Probationers so sentenced will be required to serve a period of confinement 
as specified in the court order, which confinement period shall be 
computed from the date of initial confinement in the diversion center. 

(b) The court shall determine that the defendant is at least 17 years of 
age at the time of sentencing, is capable both physically and mentally of 
maintaining paid employment in the community, and does not unnecessar- 
ily jeopardize the safety of the community. 

281 



42-8-35.6 PENAL INSTITUTIONS 42-8-36 

(c) The department may assess and collect room and board fees from 
diversion center program participants at a level set by the department. 
(Code 1981, § 42-8-35.5, enacted by Ga. L. 1995, p. 627, § 1.) 

Effective date. — This Code section be- 
came effective April 18, 1995. 

42-8-35.6. Family violence intervention program or counseling related to 
family violence as condition of probation. 

Notwithstanding any other terms or conditions of probation which may 
be imposed, a court sentencing a defendant to probation for an offense 
involving family violence as such term is defined in Code Section 19-13-1 
shall, to the extent that services are available, require as a condition of 
probation that the defendant participate in a court approved family 
violence intervention program or receive counseling related to family 
violence. Unless the defendant is indigent, the cost of such participation in 
the program or counseling shall be borne by the defendant. (Code 1981, 
§ 42-8-35.6, enacted by Ga. L. 1996, p. 1113, § 2.) 

Effective date. — This Code section be- 
came effective July 1, 1996. 

42-8-36. Duty of probationer to inform probation supervisor of residence 
and whereabouts; violations; unpaid moneys. 

(a) (1) Any other provision of this article to the contrary notwithstand- 
ing, it shall be the duty of a probationer, as a condition of probation, to 
keep his probation supervisor informed as to his residence. Upon the 
recommendation of the probation supervisor, the court may also require, 
as a condition of probation and under such terms as the court deems 
advisable, that the probationer keep the probation supervisor informed 
as to his whereabouts. The failure of a probationer to report to his 
probation supervisor as directed or a return of non est inventus or other 
return to a warrant, for the violation of the terms and conditions of 
probation, that the probationer cannot be found in the county that 
appears from the records of the probation supervisor to be the proba- 
tioner's county of residence shall automatically suspend the running of 
the probated sentence until the probationer shall personally report to the 
probation supervisor, is taken into custody in this state, or is otherwise 
available to the court; and such period of time shall not be included in 
computing creditable time served on probation or as any part of the time 
that the probationer was sentenced to serve. The effective date of the 
tolling of the sentence shall be the date that the officer returns the 
warrant showing non est inventus. Any officer authorized by law to issue 
or serve warrants may return the warrant for the absconded probationer 
showing non est inventus. 

282 



42-8-36 



PROBATION 



42-8-36 



(2) In addition to the provisions of paragraph (1) of this subsection, if 
the probation supervisor submits an affidavit to the court stating that a 
probationer has absconded and cannot be found, the running of the 
probated sentence shall be suspended effective on the date such affidavit 
is submitted to the court and continuing until the probationer shall 
personally report to the probation supervisor, is taken into custody in this 
state, or is otherwise available to the court. 

(b) Any unpaid fines, restitution, or any other moneys owed as a 
condition of probation shall be due when the probationer is arrested; but, 
if the entire balance of his probation is revoked, all the conditions of 
probation, including moneys owed, shall be negated by his imprisonment. 
If only part of the balance of the probation is revoked, the probationer shall 
still be responsible for the full amount of the unpaid fines, restitution, and 
other moneys upon his return to probation after release from imprison- 
ment. (Ga. L. 1958, p. 15, § 9; Ga. L. 1982, p. 3, § 42; Ga. L. 1984, p. 1317, 
§ 1; Ga. L. 1986, p. 492, § 1; Ga. L. 1987, p. 455, § 1; Ga. L. 1989, p. 452, 
§ 1; Ga. L. 1992, p. 6, § 42.) 



Code Commission notes. — Pursuant to 
Code Section 28-9-5, in 1986, "or" was sub- 
stituted for "nor" following "served on pro- 
bation" in the third sentence of present 
subsection (a)(1). 



Law reviews. — For article, "A Review of 
Georgia's Probation Laws," see 6 Ga. St. BJ. 
255 (1970). 

For note on 1989 amendment to this Code 
section, see 6 Ga. St. U.L. Rev. 287 (1989). 



JUDICIAL DECISIONS 



Editor's notes. — In light of the similarity 
of the provisions, decisions under former 
Penal Code 1910, § 1081(4) are included in 
the annotations for this Code section. 

Constitutionality. — The last sentence of 
this section (now the last sentence of para- 
graph (1) of subsection (a) of this section) 
constitutes a denial of due process. Hughes 
v. Hinks, 249 Ga. 416, 291 S.E.2d 545 (1982). 

Construction with § 17-10-10. — Section 
17-10-10, relating to concurrent service of 
sentences, must yield to this section if there 
is any conflict between them. Downs v. State, 
163 Ga. App. 485, 295 S.E.2d 152 (1982). 

Notice and hearing required for probation 
revocation. — Where a person is placed 
under a probation sentence, probation can- 
not be revoked without notice to proba- 
tioner and an opportunity to be heard on 
the question as to whether he violated its 
terms. Rainwater v. State, 127 Ga. App. 406, 
193S.E.2d889 (1972). 

The minimum requirements of due pro- 
cess for parole revocation are a written 
statement by the fact finders as to the evi- 



dence relied on and reasons for revoking 
parole. Reed v. State, 151 Ga. App. 224, 259 
S.E.2d 209 (1979). 

The hearing required need not meet the 
requisites of a jury trial; the proceedings 
may be informal or summary. Rainwater v. 
State, 127 Ga. App. 406, 193 S.E.2d 889 
(1972). 

The judge is the sole trier of fact and 
where there is even slight evidence the ap- 
pellate court will not interfere with the 
revocation unless there has been an abuse of 
discretion. Rainwater v. State, 127 Ga. App. 
406, 193S.E.2d889 (1972). 

The order revoking probation must state 
the evidence relied upon and the reasons for 
revocation. Rey v. State, 156 Ga. App. 474, 
274S.E.2d822 (1980). 

Judge's discretion considerable. — The 
discretion of the judge in revoking proba- 
tion will not be interfered with unless grossly 
abused. Olsen v. State, 21 Ga. App. 795, 95 
S.E. 269 (1918); Towns v. State, 25 Ga. App. 
419, 103 S.E. 724, cert, denied, 25 Ga. App. 
841, S.E. (1920). 



283 



42-8-37 



PENAL INSTITUTIONS 



42-8-37 



Leaving jurisdiction of court is ground for 
revocation. Shamblin v. Penn, 148 Ga. 592, 
97S.E. 520 (1918). 

Limitation upon power to withdraw pa- 
role. — A parole cannot lawfully be revoked 
as a mere matter of caprice. In such hearing 
the judge is the sole judge of the credibility 
of the witnesses, but he is not permitted to 
withdraw a parole unless there is sufficient 
evidence to authorize a finding that one or 
more of the conditions upon which the 
parole was granted has been violated. Will- 
iams v. State, 162 Ga. 327, 133 S.E. 843 
(1926). 

Where it cannot be determined whether 
the criminal act charged against the proba- 
tioner as in violation of his parole was com- 
mitted prior to the imposition of the sen- 
tence or subsequent thereto, a finding 
revoking the parole would be contrary to law 



and would not be authorized. Williams v. 
State, 162 Ga. 327, 133 S.E. 843 (1926). 

Tolling of a probated sentence. — Where 
a probation warrant was returned non est 
inventus, the tolling function initiated under 
paragraph (1) of subsection (a) was not 
interrupted by defendant's arrest on unre- 
lated charges in another county. Cauldwell v. 
State, 211 Ga. App. 417, 439 S.E.2d 90 
(1993). 

The order revoking probationer's parole 
is not a final judgment as is subject to review 
under Art. 2, Ch. 6, T. 5. Antonopoulas v. 
State, 151 Ga. 466, 107 S.E. 156 (1921); 
Troup v. State, 27 Ga. App. 636, 109 S.E. 681 
(1921);Jackson v. State, 27 Ga. App. 648, 110 
S.E. 423 (1921). 

Cited in Dilas v. State, 159 Ga. App. 39, 
282 S.E.2d 690 (1981); Cooper v. State, 160 
Ga. App. 287, 287 S.E.2d 284 (1981). 



OPINIONS OF THE ATTORNEY GENERAL 



Tolling of probated sentence. — This sec- 
tion provides for the tolling of a probated 
sentence when the specified returns to a 
warrant have been made; the mere issuance 
of an arrest warrant does not toll the pro- 



bated sentence; however, a probated sen- 
tence is suspended automatically upon an 
entry of one of the specified returns to such 
warrant. 1968 Op. Att'y Gen. No. 68-303. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal 
Law, §§ 567-579. 

C.J.S. — 24 C.J.S., Criminal Law, 
§§ 1549-1568. 

ALR. — Imposition or enforcement of 
sentence which has been suspended without 
authority, 141 ALR 1225. 



Right of defendant sentenced after revo- 
cation of probation to credit for jail time 
served as a condition of probation, 99 
ALR3d 781. 

Admissibility of hearsay evidence in proba- 
tion revocation hearings, 11 ALR4th 999. 



42-8-37. Effect of termination of period of probation; review of cases of 
persons receiving probated sentence; reports. 

(a) Upon the termination of the period of probation, the probationer 
shall be released from probation and shall not be liable to sentence for the 
crime for which probation was allowed; provided, however, the foregoing 
shall not be construed to prohibit the conviction and sentencing of the 
probationer for the subsequent commission of the same or a similar offense 
or for the subsequent continuation of the offense for which he was 
previously sentenced. The court may at any time cause the probationer to 
appear before it to be admonished or commended and, when satisfied that 
its action would be for the best interests of justice and the welfare of society, 
may discharge the probationer from further supervision. 



284 



42-8-38 probation 42-8-38 

(b) Upon the request of the chief judge of the court from which said 
person was sentenced, the case of each person receiving a probated 
sentence of more than two years shall be reviewed by the probation 
supervisor responsible for that case after service of two years on probation, 
and a written report of the probationer's progress shall be submitted to the 
sentencing court along with the supervisor's recommendation as to early 
termination. Upon the request of the chief judge of the court from which 
said person was sentenced, each such case shall be reviewed and a written 
report submitted annually thereafter, or more often if required, until the 
termination, expiration, or other disposition of the case. (Ga. L. 1956, p. 27, 
§ 11; Ga. L. 1972, p. 604, § 9; Ga. L. 1985, p. 516, § 1.) 

RESEARCH REFERENCES 

Am. Jut. 2d. — 21 Am. Jur. 2d, Criminal ALR. — Governor's authority to remit 
Law, §§ 567-579. forfeited bail bond, 77 ALR2d 988. 

C.J.S. — 24 C.J.S., Criminal Law, 
§§ 1549-1568. 

42-8-38. Arrest of probationer for violation of terms of probation; hearing; 
disposition of charge; procedure where probation revoked in 
county other than that of conviction. 

(a) Whenever, within the period of probation, a probation supervisor 
believes that a probationer under his supervision has violated his probation 
in a material respect, he may arrest the probationer without warrant, 
wherever found, and return him to the court granting the probation or, if 
under supervision in a county or judicial circuit other than that of 
conviction, to a court of equivalent original criminal jurisdiction within the 
county wherein the probationer resides for purposes of supervision. Any 
officer authorized by law to issue warrants may issue a warrant for the arrest 
of the probationer upon the affidavit of one having knowledge of the 
alleged violation, returnable forthwith before the court in which revocation 
proceedings are being brought. 

(b) The court, upon the probationer being brought before it, may 
commit him or release him with or without bail to await further hearing or 
it may dismiss the charge. If the charge is not dismissed at this time, the 
court shall give the probationer an opportunity to be heard fully at the 
earliest possible date on his own behalf, in person or by counsel, provided 
that, if the revocation proceeding is in a court other than the court of the 
original criminal conviction, the sentencing court shall be given ten days' 
written notice prior to a hearing on the merits. 

(c) After the hearing, the court may revoke, modify, or continue the 
probation. If the probation is revoked, the court may order the execution 
of the sentence originally imposed or of any portion thereof. In such event, 
the time that the defendant has served under probation shall be considered 

285 



42-8-38 PENAL INSTITUTIONS 42-8-38 

as time served and shall be deducted from and considered a part of the time 
he was originally sentenced to serve. 

(d) In cases where the probation is revoked in a county other than the 
county of original conviction, the clerk of court in the county revoking 
probation may record the order of revocation in the judges minute docket, 
which recordation shall constitute sufficient permanent record of the 
proceedings in that court. The clerk shall send one copy of the order 
revoking probation to the department to serve as a temporary commitment 
and shall send the original order revoking probation and all other papers 
pertaining thereto to the county of original conviction to be filed with the 
original records. The clerk of court of the county of original conviction 
shall then issue a formal commitment to the department. (Ga. L. 1956, p. 
27, § 12; Ga. L. 1960, p. 857, § 1; Ga. L. 1966, p. 440, § 1.) 

Law reviews. — For article, "A Review of For comment criticizing Mercer v. Hop- 
Georgia's Probation Laws," see 6 Ga. St. B.J. per, 233 Ga. 620, 212 S.E.2d 799 (1975), see 
255 (1970). 27 Mercer L. Rev. 325 (1975). 

JUDICIAL DECISIONS 

Analysis 

General Consideration 
Probation Revocation Procedure 

1. In General 

2. Necessity for Prescribed Rules and Regulations 

3. Constitutional Requirements 

A. In General 

B. Notice 

C. Hearing 

D. Right to Counsel 

E. Trial by Jury 

F. Search and Seizures 

G. Use of Habeas Corpus 
Quantum of Proof Needed 

1. In General 

2. Slight Evidence Test 

3. Showing of Some Evidence 

4. Proof Need Not Sustain Criminal Conviction 

5. Review of Revocation by Appeals Court 
Evidence Sufficient for Revocation 
Evidence Insufficient for Revocation 
Computation of and Credit for Time Served 
Decisions Under Prior Law 

1. Decisions Under Code 

2. Decisions Under Code 

General Consideration work, he could not be considered to be on 

probation, thus an action by the trial court 

Scope of section. — Where defendant was to modify and extend his sentence under 

sentenced to the county jail when not at this section was a nullity, since this section 

286 



42-8-38 



PROBATION 



42-8-38 



relates solely to revocation of probation. 
Howell v. State, 160 Ga. App. 562, 287 S.E.2d 
573 (1981). 

When probation may be revoked or mod- 
ified. — The probated portion of a sentence 
may be revoked or modified at any time 
during the term of the probated sentence 
after hearing and finding of probation vio- 
lation. Logan v. Lee, 247 Ga. 608, 278 S.E.2d 
1 (1981). 

Determination of revocation. — Even 
where condition of probation has not been 
complied with, circumstances of individual 
defendant must be taken into consideration 
in determining whether revocation is war- 
ranted. Malcom v. State, 162 Ga. App. 587, 
291 S.E.2d 756 (1982). 

Increase of sentence. — While the trial 
court has jurisdiction to change or modify 
the terms of the original sentence, it cannot 
increase the sentence originally passed. 
Howell v. State, 160 Ga. App. 562, 287 S.E.2d 
573 (1981). 

Probationary status only to be considered. 

— Subsection (c) limits the power of the 
trial court to a decision affecting only the 
probationary status of the previously con- 
victed probationer. In no way does it provide 
for the imposition of a sentence of any kind 
based upon the charge underlying an al- 
leged violation of the terms of a previously 
ordered probation. Abney v. State, 170 Ga. 
App. 265, 316 S.E.2d 845 (1984). 

Violation of diversion center regulations. 

— It was error to hold that a probationer's 
failure to abide by the diversion center's 
regulations made him liable for the felony 
offense of escape rather than for the mere 
revocation of his probation. Unsatisfactory 
performance in the program would subject 
the probationer to revocation of probation 
as specified by this Code section; however an 
alternative to revocation of probation would 
be the imposition of the more severe sanc- 
tions of § 16-10-52(a)(3). Where any uncer- 
tainty develops as to which penal clause is 
applicable, the accused is entitled to have 
the lesser of two penalties administered. 
Chandler v. State, 257 Ga. 775, 364 S.E.2d 
273 (1988). 

Effect of failure to revoke probation on 
subsequent criminal trial. — That the quan- 
tum of proof necessary to revoke probation 
has been changed from "slight evidence" to 
"a preponderance of the evidence" does not 



affect the rule that a ruling in favor of the 
probationer, continuing rather than revok- 
ing his probation, has no collateral estoppel 
effect in a subsequent criminal trial. State v. 
Jones, 196 Ga. App. 896, 397 S.E.2d 209 
(1990). 

Unambiguous revocation of probation not 
subject to subsequent adjustment. — Where 
defendant received a sentence which unam- 
biguously revoked his prior probation, he 
fully served the time imposed therein, and 
there was no indication in the sentence that 
any portion of his probation was to be 
reinstated upon his release, that sentence 
was fully satisfied when he was released from 
jail, and court's order subsequently revoking 
his probation was invalid, as there was noth- 
ing left to revoke. Hulen v. State, 207 Ga. 
App. 465, 428 S.E.2d 405 (1993). 

Cited in King v. Adams, 410 F.2d 455 (5th 
Cir. 1969); Young v. State, 123 Ga. App. 791, 
182 S.E.2d 676 (1971); Brogdon v. State, 136 
Ga. App. 121, 220 S.E.2d 471 (1975); Taylor 
v. State, 136 Ga. App. 317, 221 S.E.2d 224 
(1975); Ware v. State, 137 Ga. App. 673, 224 
S.E.2d 873 (1976); Robinson v. State, 139 Ga. 
App. 480, 228 S.E.2d 615 (1976); Alexander 
v. State, 141 Ga. App. 16, 232 S.E.2d 364 
(1977); Palmer v. State, 144 Ga. App. 480, 
241 S.E.2d 597 (1978); Harper v. State, 146 
Ga. App. 337, 246 S.E.2d 391 (1978); Kilgore 
v. State, 155 Ga. App. 739, 272 S.E.2d 505 
(1980); McElroy v. State, 247 Ga. 355, 276 
S.E.2d 38 (1981); Wood v. Georgia, 450 U.S. 
261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); 
State v. Brinson, 248 Ga. 380, 283 S.E.2d 463 
(1981); Garland v. State, 160 Ga. App. 97, 
286 S.E.2d 330 (1981); Brewer v. State, 162 
Ga. App. 228, 291 S.E.2d 87 (1982); Brooks 
v. State, 162 Ga. App. 485, 292 S.E.2d 89 
(1982); Shaw v. State, 164 Ga. App. 208, 296 
S.E.2d 765 (1982); Smith v. State, 164 Ga. 
App. 384, 297 S.E.2d 738 (1982); Beasley v. 
State, 165 Ga. App. 160, 299 S.E.2d 886 
(1983); Strickland v. State, 165 Ga. App. 197, 
300 S.E.2d 537 (1983); Moore v. Kemp, 809 
F.2d702 (11th Cir. 1987). 

Probation Revocation Procedure 

1. In Genera] 

Revocation of probation based upon 
unprosecuted crime. — Revocation of pro- 
bation based at least in part upon alleged 
commission of a crime for which a party has 



287 



42-8-38 



PENAL INSTITUTIONS 



42-8-38 



Probation Revocation Procedure (Cont'd) 
1. In General (Cont'd) 

not yet stood trial and been found guilty 
does not contravene principles of due pro- 
cess and fundamental fairness. King v. State, 
154 Ga. App. 549, 269 S.E.2d 55 (1980). 

Revocation by different court. — Proba- 
tion may be revoked by a court of equivalent 
original criminal jurisdiction when the pro- 
bationer's county of supervision and resi- 
dence is different from the county of origi- 
nal conviction. Biddy v. State, 132 Ga. App. 
264, 208S.E.2d22 (1974). 

Revocation based on felony. — Where an 
act on which revocation of probation is 
based is a felony, it is not erroneous for the 
hearing judge to base revocation on that 
accusation, before the accused shall have 
first been tried and found guilty of the 
criminal charge. Evans v. State, 153 Ga. App. 
764, 266 S.E.2d 545 (1980). 

Question as to excessiveness of sentence. 
— Any question as to the excessiveness of a 
sentence which is otherwise legal should be 
addressed to the sentence review panel. 
Strickland v. State, 158 Ga. App. 340, 280 
S.E.2d 168 (1981). 

Findings where record sufficient. — 
Where the record from which basis for revo- 
cation can be ascertained is sufficient, it is 
not necessary for the trier of fact to commit 
his findings to a separate piece of paper. 
Hayes v. State, 168 Ga. App. 94, 308 S.E.2d 
227 (1983). 

Separate hearing after grounds for revo- 
cation discovered. — Court need not hold 
separate dispositional or sentencing hearing 
after finding grounds for revocation of pro- 
bation. Hayes v. State, 157 Ga. App. 659, 278 
S.E.2d424 (1981). 

Persons empowered to make warrantiess 
arrest of probation violators. — The power 
to make a warrantless arrest of a known 
probation violator is not limited to the pro- 
bation supervisor, but also includes a law 
enforcement officer with general arrest pow- 
ers who has trustworthy information as to 
the probation violation. Battle v. State, 254 
Ga. 666, 333 S.E.2d 599 (1985). 

2. Necessity for Prescribed Rules and 
Regulations 

Purpose for showing rules and regulations 
prescribed. — Probated sentences must 



show the rules and regulations prescribed so 
that a violation of such rules and regulations 
will revoke the parole. Simmons v. State, 96 
Ga. App. 718, 101 S.E.2d 111 (1957). 

Ambiguous sentence construed in favor of 
defendant. — Hence, the trial court erred in 
revoking purported probation sentence 
since construed as a whole, the sentence was 
an alternative one and the defendant was to 
be discharged upon payment of the fines 
and costs. Favors v. State, 95 Ga. App. 318, 97 
S.E.2d 613 (1957). 

Violations considered by court at pro- 
bated sentence revocation hearing. — Since 
the court cannot revoke a probated sentence 
unless that sentence has conditions suffi- 
ciently definite to be enforceable, and unless 
those conditions have not been complied 
with, and since the defendant is entitled to 
notice and an opportunity to be heard on 
the charge which is brought against him, 
only those alleged violations which are terms 
of the original sentence, and notice of the 
violation of which has been given the proba- 
tioner, may be considered by the court on 
the hearing to revoke the probated sen- 
tence. George v. State, 99 Ga. App. 892, 109 
S.E.2d883 (1959). 

Revocation must be based on ground 
stated in petition. — Where the trial court 
erroneously ruled that "theft by disposing" 
is a lesser included offense of theft by taking, 
revocation of defendant's probation could 
not stand because the revocation was not 
made on the ground stated in the petition. 
Sosbee v. State, 155 Ga. App. 196, 270 S.E.2d 
367 (1980). 

3. Constitutional Requirements 

A. In General 

Probation as privilege. — Probation is 
granted as a privilege, and not as a matter of 
right; and revocation of probation is punish- 
ment for the crime for which the defendant 
was convicted in the first instance. Scott v. 
State, 131 Ga. App. 504, 206 S.E.2d 137 
(1974) ; Heard v. State, 154 Ga. App. 420, 268 
S.E.2d757 (1980). 

Applicability of double jeopardy clause. — 
Because parole and probation revocation 
proceedings are not designed to punish a 
criminal defendant for violation of a crimi- 
nal law and, because the purpose of parole 
and probation revocation proceedings is to 



288 



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determine whether a parolee or probationer 
has violated the conditions of his parole or 
probation, such proceedings are fundamen- 
tally distinguishable from juvenile proceed- 
ings, the latter being indistinguishable from 
a criminal prosecution, and, thus, the dou- 
ble jeopardy clause of U.S. Const, Amend. 5 
does not apply to parole and probation 
revocation proceedings. United States v. 
Whitney, 649 F.2d 296 (5th Cir. 1981). 

Revocation based on failure to pay resti- 
tution. — Revocation of probation, pre- 
mised upon failure to timely pay court or- 
dered restitution, does not violate due 
process and equal protection. Wilson v. 
State, 155 Ga. App. 825, 273 S.E.2d 210 
(1980). 

The minimum requirements of due pro- 
cess for parole revocation are: a written 
statement by the fact finders as to the evi- 
dence relied on and reasons for revoking 
parole. Reed v. State, 151 Ga. App. 224, 259 
S.E.2d 209 (1979). 

Although this section does not require it, 
"a written statement by the fact finders as to 
the evidence relied on and reasons for re- 
voking probation" has been established as a 
minimum due process requirement in assur- 
ing the constitutional rights of an individual 
who will be condemned to suffer grievous 
loss by restraint of liberty. Moore v. State, 151 
Ga. App. 791, 261 S.E.2d 730 (1979). 

Contents of revocation order. — The or- 
der revoking probation must state evidence 
relied upon and reasons for revocation. Rey 
v. State, 156 Ga. App. 474, 274 S.E.2d 822 
(1980). 

Use of uncorroborated accomplice testi- 
mony in hearing. — Where uncorroborated 
accomplice testimony is shown inherently to 
lack credit, or is sufficiently controverted, 
abuse of discretion in admitting it in hearing 
may become manifest. Christy v. State, 134 
Ga. App. 504, 215 S.E.2d 267 (1975). 

B. Notice 

Notice and hearing required for revoca- 
tion. — In order to revoke the probationary 
features of a sentence the defendant must 
have notice and opportunity to be heard, the 
notice being sufficient to inform him not 
only of the time and place of the hearing 
and the fact that revocation is sought, but 
the grounds upon which it is based. Horton 



v. State, 122 Ga. App. 106, 176 S.E.2d 287 
(1970). 

Where probation is sought to be revoked, 
the defendant is entitled to notice, which 
notice must be sufficient to inform him of 
the manner in which he has violated his 
parole and give him an opportunity to de- 
fend. George v. State, 99 Ga. App. 892, 109 
S.E.2d883 (1959). 

Where a person is placed under a proba- 
tion sentence, probation cannot be revoked 
without notice to the probationer and an 
opportunity to be heard on the question as 
to whether he violated its terms. Rainwater v. 
State, 127 Ga. App. 406, 193 S.E.2d 889 
(1972). 

Failure to afford probationer notice and a 
hearing would render a revocation order 
void for lack of due process of law. Sellers v. 
State, 107 Ga. App. 516, 130 S.E.2d 790 
(1963); Scott v. State, 131 Ga. App. 504, 206 
S.E.2d 137 (1974). 

Application of slight evidence rule. — 
Where defendant received written notice of 
the claimed violation of probation, the dis- 
closure of the evidence against him, an 
opportunity to be heard in person and to 
present witnesses and document evidence, 
the right to confront and cross-examine 
adverse witnesses, heard by a neutral and 
detached judicial officer, with a written state- 
ment by the fact finder as to the evidence 
relied on and reasons for revoking proba- 
tion, application of the "slight evidence" 
rule did not deny the defendant due process 
and equal protection. Mingo v. State, 155 Ga. 
App. 284, 270 S.E.2d 700 (1980). 

C. Hearing 

Time period between petition and hear- 
ing. — Absent special circumstances, 30 days 
is a reasonable time period between petition 
and hearing, for the sake of both the state 
and the offender. Anderson v. State, 166 Ga. 
App. 521, 304 S.E.2d 747 (1983). 

Purpose of a probation revocation hearing 
is to determine whether the conduct of the 
defendant during the probation period has 
conformed to the terms and conditions out- 
lined in the order of probation. Evans v. 
State, 153 Ga. App. 764, 266 S.E.2d 545 
(1980). 

Form of meeting. — The hearing re- 
quired need not meet the requisites of a jury 
trial; the proceedings may be informal or 



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Probation Revocation Procedure (Cont'd) 
3. Constitutional Requirements (Cont'd) 
C. Hearing (Cont'd) 

summary. Rainwater v. State, 127 Ga. App. 
406, 193 S.E.2d 889 (1972); Wellons v. State, 
144 Ga. App. 218, 240 S.E.2d 768 (1977). 

Applicability of rules of evidence. — The 
rules of evidence of normal criminal pro- 
ceedings are not applicable to a hearing 
under this section and evidentiary matters 
are within the discretion of the trial judge. 
Christy v. State, 134 Ga. App. 504, 215 S.E.2d 
267 (1975). 

Use of preliminary hearing to establish 
probable cause for revocation hearing. — 
Failure of trial court to afford a preliminary 
hearing to establish probable cause to con- 
duct a revocation of probation hearing fol- 
lowed by an evidentiary show cause hearing, 
rather than consolidating the procedure 
into one hearing does not violate due pro- 
cess. Wilson v. State, 152 Ga. App. 695, 263 
S.E.2d 691 (1979), cert, denied, 449 U.S. 
847, 101 S. Ct. 133, 66 L. Ed. 2d 57 (1980). 

Criminal nature of act violating probation. 
— Fact that act alleged to be in violation of 
probation is of a criminal nature does not 
change character of revocation hearing. 
Robinson v. State, 154 Ga. App. 591, 269 
S.E.2d 86 (1980). 

A hearing of this character is not a trial on 
a criminal charge, but is a hearing to judi- 
cially determine whether the conduct of the 
defendant during the probation period has 
conformed to the course outlined in the 
order of probation. If the act which violated 
the probation should happen to be a crimi- 
nal one, it does not thereby change the 
character of the hearing. Sparks v. State, 77 
Ga. App. 22, 47 S.E.2d 678 (1948); Johnson 
v. State, 214 Ga. 818, 108 S.E.2d 313 (1959). 

Stages for offering defenses. — The fact 
that certain defenses could also be advanced 
in a trial upon the merits of the offense does 
not in any way drain the legal effect of a 
failure to offer defenses at the dispositional 
hearing. Wilson v. State, 152 Ga\App. 695, 
263 S.E.2d 691 (1979), cert, denied, 449 U.S. 
847, 101 S. Ct. 133, 66 L. Ed. 2d 57 (1980). 

Accusation by indictment as opposed to 
violation of probationary conditions. — The 
defendant is not in the position of one 
accused by indictment, even though the 
probationary condition alleged to have been 



violated is the commission of a crime. Jack- 
son v. State, 140 Ga. App. 659, 231 S.E.2d 554 
(1976). 

Trial court's discretion to grant motion for 
psychiatric examination. — Where no spe- 
cial plea of insanity is filed, the granting of a 
motion for a psychiatric examination is 
within the sound discretion of the trial 
court. This rule attaches in probation revo- 
cation hearings as well as in criminal pro- 
ceedings. Mann v. State, 154 Ga. App. 677, 
269S.E.2d863 (1980). 

Review where no hearing transcript exists. 

— Where there is no transcript of hearing, 
an appellate court is bound to assume that 
trial judge's findings are supported by suffi- 
cient competent evidence. Nalley v. State, 
147 Ga. App. 634, 249 S.E.2d 685 (1978). 

D. Right to Counsel 

Probation revocation hearing. — There is 
no right to counsel at a probation revocation 
hearing. Mercer v. Hopper, 233 Ga. 620, 212 
S.E.2d 799 (1975). 

A defendant is not ordinarily entitled to 
appointed counsel for a probation revoca- 
tion hearing. Kemp v. Spradlin, 250 Ga. 829, 
301 S.E.2d874 (1983). 

Indigent defendant. — An indigent is not 
entided to appointed counsel at his proba- 
tion revocation hearing. Nalley v. State, 147 
Ga. App. 634, 249 S.E.2d 685 (1978). 

Statute providing for benefit of counsel. 

— A proceeding to revoke a probated sen- 
tence of one convicted of a criminal offense 
is not a criminal proceeding, and the failure 
of the court to supply him with counsel is not 
a denial of the right to counsel unless a 
statute provides' for benefit of counsel at 
such a hearing. Dutton v. Willis, 223 Ga. 209, 
154S.E.2d221 (1967). 

Circumstances requiring appointment of 
legal counsel. — See Kemp v. Spradlin, 250 
Ga. 829, 301 S.E.2d 874 (1983). 

E. Trial by Jury 

Constitutionality. — This section is not 
unconstitutional as a violation of Ga. Const. 
1983, Art. I, Sec. I, Para. XI because no 
provision is made for trial by jury upon the 
hearing to determine whether a parole shall 
be revoked. Probation is granted as a privi- 
lege, and not as a matter of right; and the 
revocation of the probation is punishment 



290 



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for the crime for which the defendant was 
convicted in the first instance. Johnson v. 
State, 214 Ga. 818, 108 S.E.2d 313 (1959). 
Probationer not guaranteed trial by jury. 

— A hearing on a revocation is not a trial on 
a criminal charge and the probationer has 
no right to a trial by jury. Sellers v. State, 107 
Ga. App. 516, 130 S.E.2d 790 (1963); Scott v. 
State, 131 Ga. App. 504, 206 S.E.2d 137 
(1974). 

F. Search and Seizures 

Probationer status as factor in determin- 
ing reasonableness of search. — A defen- 
dant's status as a probationer, however, is a 
factor to be considered in determining 
whether a search and seizure by a probation 
officer is unreasonable. Austin v. State, 148 
Ga. App. 784, 252 S.E.2d 696 (1979). 

Basis for reasonable search by probation 
officer. — Search by a probation officer is 
reasonable if it is actuated by the legitimate 
operation of the probation supervision pro- 
cess and the probation officer acts reason- 
ably in performing those duties. Austin v. 
State, 148 Ga. App. 784, 252 S.E.2d 696 
(1979). 

Search warrant based on information de- 
rived from informants. — If an affiant shows 
ample facts to authorize the issuing magis- 
trate to conclude that there is probable 
cause to believe that a crime of the nature set 
forth in the affidavits has been committed 
and that evidence of the crime would be 
produced by a search of the premises de- 
scribed in the affidavits, the fact that much 
of the affiant's information is derived from 
informants will not vitiate the warrant. 
Gausey v. State, 148 Ga. App. 755, 252 S.E.2d 
664 (1979). 

Effect of illegality of arrest on revocation. 

— Assuming that the defendant's arrest on 
charges of violating his probation was illegal, 
this would not in and of itself constitute a 
bar to the subsequent revocation of his 
probation. Hayes v. State, 157 Ga. App. 659, 
278S.E.2d424 (1981). 

G. Use of Habeas Corpus 

Correction of errors or irregularities com- 
mitted at trial. — Where no exception was 
taken to order revoking probation as pro- 
vided by law, the petitioner may not seek 
review, by habeas corpus, of the judgment 



revoking the probationary sentence im- 
posed upon his wife, since habeas corpus 
cannot be used as a substitute for appeal or 
other remedial procedure, for the correc- 
tion of errors or irregularities alleged to 
have been committed by a trial court. 
Balkcom v. Parris, 215 Ga. 123, 109 S.E.2d 48 
(1959). 

Showing that judgment of revocation is 
void required. — Allegations in petition for 
habeas corpus that order of revocation un- 
der attack was premature, in that the proba- 
tioner was entitled to a jury trial on the 
question of whether or not she had commit- 
ted the offense in violation of the terms of 
her probation, prior to said revocation, that 
three days' notice of the revocation hearing 
was not sufficient or adequate notice, that 
she had been acquitted by a jury, subsequent 
to the order of revocation, of said offense 
alleged to have constituted the probation 
violation, and that the evidence on the hear- 
ing was insufficient to sustain the exercise of 
the judge's discretion in revoking probation 
were insufficient to sustain the prisoner's 
discharge under the writ, in that such alle- 
gations failed to show the judgment of revo- 
cation to be void, which is requisite to such 
relief. Balkcom v. Parris, 215 Ga. 123, 109 
S.E.2d48 (1959). 

Quantum of Proof Needed 

1. In General 

Quantum of evidence required construed. 

— The quantum of evidence sufficient to 
justify trial court in revoking a probationary 
sentence is less than that necessary to sustain 
a conviction in the first instance. Lankford v. 
State, 112 Ga. App. 204, 144 S.E.2d 463 
(1965); Boston v. State, 128 Ga. App. 576, 
197 S.E.2d 504 (1973); Christy v. State, 134 
Ga. App. 504, 215 S.E.2d 267 (1975); Barlow 
v. State, 140 Ga. App. 667, 231 S.E.2d 561 
(1976); Swain v. State, 157 Ga. App. 868, 278 
S.E.2d 743 (1981); Keasler v. State, 165 Ga. 
App. 561, 301 S.E.2d 915 (1983). 

The revocation of probation can rest upon 
evidence less than is required for conviction. 
Kemp v. Spradlin, 250 Ga. 829, 301 S.E.2d 
874 (1983). 

The quality or quantity necessary for revo- 
cation is not that demanded for conviction 
of a crime. Seldon v. State, 166 Ga. App. 326, 
304S.E.2d475 (1983). 



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Quantum of Proof Needed (Cont'd) 
1. In General (Cont'd) 

All that is required to revoke probation is 
that the evidence and facts be such as to 
reasonably satisfy the judge that the conduct 
of the probationer has not been as good as 
required by the conditions of probation. 
Evans v. State, 153 Ga. App. 764, 266 S.E.2d 
545 (1980). 

2. Slight Evidence Test 

Evidence for revocation. — Only slight 
evidence is required to authorize revocation. 
Christy v. State, 134 Ga. App. 504, 215 S.E.2d 

267 (1975); Barlow v. State, 140 Ga. App. 
667, 231 S.E.2d 561 (1976); Gilbert v. State, 
150 Ga. App. 339, 258 S.E.2d 27 (1979); 
Wade v. State, 152 Ga. App. 529, 263 S.E.2d 

268 (1979); Pickard v. State, 152 Ga. App. 
707, 263 S.E.2d 679 (1979); Morris v. State, 
153 Ga. App. 415, 265 S.E.2d 337 (1980); 
White v. State, 153 Ga. App. 808, 266 S.E.2d 
528 (1980); Heard v. State, 154 Ga. App. 420, 
268 S.E.2d 757 (1980); King v. State, 154 Ga. 
App. 549, 269 S.E.2d 55 (1980); Robinson v. 
State, 154 Ga. App. 591, 269 S.E.2d 86 
(1980); Lynch v. State, 158 Ga. App. 232, 279 
S.E.2d 537 (1981); Davis v. State, 165 Ga. 
App. 709, 302 S.E.2d 610 (1983); Seldon v. 
State, 166 Ga. App. 326, 304 S.E.2d 475 
(1983). 

Evidence for violation of probation. — 
Only slight evidence is necessary to support 
a finding of a violation of probation. Jones v. 
State, 153 Ga. App. 411, 265 S.E.2d 334 
(1980). 

On probation revocation hearing, slight 
evidence will be sufficient to support judg- 
ment revoking the probationary feature of 
the sentence. Hulett v. State, 150 Ga. App. 
367, 258 S.E.2d 48 (1979). 

It is not necessary that evidence support 
the finding beyond a reasonable doubt or 
even by a preponderance of the evidence. 
Only "slight evidence" is required. Scott v. 
State, 131 Ga. App. 504, 206 S.E.2d 137 
(1974). 

There must be some evidence that the 
defendant violated terms of his probated 
sentence as charged in the notice given him 
of the revocation hearing. Young v. State, 
153 Ga. App. 454, 265 S.E.2d 362 (1980). 

In determining sufficiency of evidence in 
probation revocation hearing, trial judge is 



not bound by same rules of evidence as is 
jury in passing on the guilt or innocence of 
accused in first instance, but has wide discre- 
tion and only slight evidence is required to 
authorize revocation. Partee v. State, 155 Ga. 
App. 662, 272 S.E.2d 528 (1980). 

Only slight evidence is required which 
need only be sufficient to satisfy the trial 
judge in exercise of his sound discretion that 
defendant has violated the terms of his 
probation. Raines v. State, 130 Ga. App. 1, 
202S.E.2d253 (1973). 

Slight evidence will support a judgment of 
revocation since the trial court on such a 
hearing has a wide discretion in considering 
the evidence against the probationer. 
Horton v. State, 122 Ga. App. 106, 176 S.E.2d 
287 (1970). 

Constitutionality of standard. — Under 
the "slight" evidence test, the standard by 
which the sufficiency of the evidence is 
determined, is not violative of due process in 
that it is less than that necessary to sustain a 
conviction. King v. State, 154 Ga. App. 549, 
269S.E.2d55 (1980). 

Manifest abuse of discretion must be 
shown for reversal. — Where the trial judge 
finds slight evidence that the conditions of 
probation have been violated, he may 
through his discretionary power revoke the 
probation, and such action may not be over- 
turned without a showing that there has 
been a manifest abuse of discretion. Hayes v. 
State, 157 Ga. App. 659, 278 S.E.2d 424 
(1981). 

Only slight evidence is required to autho- 
rize revocation of probation and where there 
is even slight evidence of misconduct the 
appellate court will not interfere with revo- 
cation unless there has been a manifest 
abuse of discretion. Gamble v. State, 157 Ga. 
App. 613, 278 S.E.2d 413 (1981); Swain v. 
State, 157 Ga. App. 868, 278 S.E.2d 743 
(1981); Tinsley v. State, 159 Ga. App. 579, 
284S.E.2d84 (1981). 

3. Showing of Some Evidence 

Appeal of revocation. — The quantum of 
evidence necessary to support a probation 
revocation on appeal is merely that there be 
some legal evidence to support the finding; 
where no such evidence exists the decision 
must be reversed. Moore v. State, 155 Ga. 
App. 299, 270 S.E.2d 713 (1980). 

Although the trial court on a hearing for 



292 



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the revocation of probation has a wide dis- 
cretion, and although only slight evidence 
will support a judgment of revocation, some 
evidence is required. George v. State, 99 Ga. 
App. 892, 109 S.E.2d 883 (1959). 

Evidence need not support finding be- 
yond reasonable doubt or even by prepon- 
derance of evidence but there must be some 
evidence for judge to consider as the sole 
trier of fact. Wellons v. State, 144 Ga. App. 
218, 240S.E.2d768 (1977). 

While the trial court has a wide discretion 
in revoking a probated sentence, and while 
only slight evidence will support a judgment 
of revocation, some evidence that the defen- 
dant violated the terms of his probated 
sentence as charged in the notice given him 
of the revocation hearing is required. 
Kendrick v. State, 125 Ga. App. 326, 187 
S.E.2d580 (1972). 

4. Proof Need Not Sustain Criminal 
Conviction 

Proof required. — Revocation of proba- 
tion does not require proof sufficient to 
sustain a criminal conviction. Bendey v. 
State, 153 Ga. App. 408, 265 S.E.2d 292 
(1980). 

Revocation of probation does not require 
proof sufficient to sustain a criminal convic- 
tion beyond a reasonable doubt. Sosbee v. 
State, 155 Ga. App. 196, 270 S.E.2d 367 
(1980). 

It is not necessary that the evidence sup- 
port the finding beyond a reasonable doubt 
or even by a preponderance of evidence. 
The judge is the trier of the facts and he has 
a very wide discretion. Sellers v. State, 107 
Ga. App. 516, 130 S.E.2d 790 (1963). 

The benefit and protection afforded un- 
der due process and equal protection clauses 
of Constitutions have not been violated in 
that the establishment of the defendant's 
guilt beyond reasonable doubt is not neces- 
sary to justify the revocation of a sentence of 
probation. Mingo v. State, 155 Ga. App. 284, 
270S.E.2d700 (1980). 

Effect of failure to revoke probation in 
subsequent criminal trial. — Under subsec- 
tion (c), the revocation or continuance of 
probation is still within the discretion of the 
trial court so long as a ruling to revoke is 
based on at least a preponderance of the 
evidence, as required by § 42-8-34.1 (a). The 
exercise of discretion in declining to revoke 



probation is not an adjudication of the alle- 
gations sufficient to constitute acquittal on 
the criminal charge forming the basis for the 
revocation proceeding. State v. Jones, 196 
Ga. App. 896, 397 S.E.2d 209 (1990). 

5. Review of Revocation by Appeals Court 

Manifest abuse of discretion by trial court. 

— An appeals court will not interfere with a 
revocation unless there has been a manifest 
abuse of discretion on the part of the trial 
court. Sellers v. State, 107 Ga. App. 516, 130 
S.E.2d 790 (1963); Scott v. State, 131 Ga. 
App. 504, 206 S.E.2d 137 (1974). 

Where, after notice and hearing, the court 
revokes the probationary feature of a sen- 
tence, and there is some evidence which 
would indicate that there has been a viola- 
tion thereof, the Court of Appeals will not 
interfere unless a manifest abuse of discre- 
tion on the part of the trial court appears. 
Lankford v. State, 112 Ga. App. 204, 144 
S.E.2d 463 (1965). 

Where there is any evidence supporting 
the offense charged as a violation of the 
probation, an appellate court will not inter- 
fere with a revocation unless there has been 
manifest abuse of discretion. Barlow v. State, 
140 Ga. App. 667, 231 S.E.2d 561 (1976); 
Clay v. State, 143 Ga. App. 361, 238 S.E.2d 
724 (1977); Gilbert v. State, 150 Ga. App. 
339, 258S.E.2d27 (1979). 

Slight evidence of misconduct by trial 
court. — Even where there is slight evidence 
of misconduct, the appellate court will not 
interfere with revocation unless there has 
been manifest abuse of discretion. Boston v. 
State, 128 Ga. App. 576, 197 S.E.2d 504 
(1973); Christy v. State, 134 Ga. App. 504, 
215 S.E.2d 267 (1975); Keasler v. State, 165 
Ga. App. 561, 301 S.E.2d 915 (1983). 

On hearing to determine whether proba- 
tion should be revoked, judge is sole trier of 
fact and where there is even slight evidence 
appellate court will not interfere with revo- 
cation unless there has been an abuse of 
discretion. Rainwater v. State, 127 Ga. App. 
406, 193 S.E.2d 889 (1972). 

Evidence sufficient to support finding. — 
Slight evidence is sufficient to support a 
finding of probation revocation and evi- 
dence of criminal acts of which a defendant 
has been acquitted may be used to revoke his 
probation. Kellam v. State, 154 Ga. App. 561, 
269S.E.2d493 (1980). 



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Quantum of Proof Needed (Cont'd) 
5. Review of Revocation by Appeals 
Court (Cont'd) 

Because only slight evidence is required 
for revocation of probation any lack of spec- 
ificity as to the date of the alleged violation 
in the rule nisi is harmless. Wilson v. State, 
152 Ga. App. 695, 263 S.E.2d 691 (1979), 
cert, denied, 449 U.S. 847, 101 S. Ct. 133, 66 
L. Ed. 2d 57 (1980). 

Evidence Sufficient for Revocation 

Testimony of juvenile combined with ar- 
resting officer. — Juvenile's testimony that 
defendant had broken window of jewelry 
store by throwing a rock, when added to the 
testimony of the police officer, who arrested 
them when he drove to the vicinity of the 
jewelry store after an alarm had gone off, 
that he did not see any other person in the 
area of the jewelry store except the defen- 
dant and the juvenile, under all the circum- 
stances, authorized the court's revocation of 
probated sentence. Mingo v. State, 155 Ga. 
App. 284, 270 S.E.2d 700 (1980). 

Testimony by policeman posing as drug 
buyer. — Testimony by a police agent iden- 
tifying the substance sold him by the defen- 
dant as marijuana is sufficient to authorize 
revocation of the defendant's probation. 
Smith v. State, 144 Ga. App. 631, 241 S.E.2d 
499 (1978). 

Theft by deception. — The evidentiary 
showing of theft by deception is sufficient to 
authorize the revocation of probation. 
McKnight v. State, 151 Ga. App. 121, 258 
S.E.2d918 (1979). 

Evidence Insufficient for Revocation 

Charge in notice of arrest without intro- 
duction of supporting evidence. — Where 
notice contained in the special order of 
arrest charged the defendant with manufac- 
turing illicit whiskey, but no evidence at all 
was introduced, mere fact that defendant 
was operating a truck loaded with sugar, and 
that he refused to give the name of the 
purchaser or seller of the sugar and that he 
had no bill of lading or bill of sale for the 
same, which facts were perfectly consistent 
with the defendant's contention that he was 
doing some hauling, was not sufficient to 
authorize revocation of the probation order. 



George v. State, 99 Ga. App. 892, 109 S.E.2d 
883 (1959). 

Requirements as to contents of arrest 
order. — Where notice contained in the 
order of arrest failed to charge the defen- 
dant with a violation of that provision of the 
probation order prohibiting him from leav- 
ing the state without permission, mere fact 
that he was stopped in Alabama was not a 
sufficient ground for revocation. George v. 
State, 99 Ga. App. 892, 109 S.E.2d 883 
(1959). 

Probation may not be revoked where 
there is no evidence the defendant violated 
its terms in the manner charged in the 
notice, even though there may be evidence 
at the hearing that the defendant violated 
the terms of probation in some other man- 
ner as to which no notice was given. Horton 
v. State, 122 Ga. App. 106, 176 S.E.2d 287 
(1970). 

Illegally seized evidence may not be used 
to revoke probation. Adams v. State, 153 Ga. 
App. 41, 264 S.E.2d 532 (1980); Owens v. 
State, 153 Ga. App. 525, 265 S.E.2d 856 
(1980). 

Applicability of criminal rules of proce- 
dure. — A probation revocation hearing is 
not a criminal trial, and the same rules of 
procedure do not apply. Austin v. State, 148 
Ga. App. 784, 252 S.E.2d 696 (1979). 

Computation of and Credit for Time 
Served 

Crediting of probation toward imprison- 
ment. — When probationer is sentenced to 
serve time in penal institution for offense for 
which he has spent time on probation, that 
probation time must be credited to any 
sentence received, including cases involving 
first offender probation. Stephens v. State, 
245 Ga. 835, 268 S.E.2d 330 (1980). 

Crediting of imprisonment time pending 
final disposition of revocation petition. — 
Since trial court can order execution of 
sentence originally imposed, probationer is 
entitled to assert that periods of imprison- 
ment prior to final disposition of his revoca- 
tion petition must be counted toward that 
original sentence, and the order of revoca- 
tion cannot result in the execution of a 
longer sentence than was originally im- 
posed. Dickey v. State, 157 Ga. App. 13, 276 
S.E.2d 75 (1981). 

Since trial court cannot, under this sec- 



294 



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42-8-38 



tion and § 17-10-1, increase sentence origi- 
nally passed, period of time probationer 
serves in jail prior to final disposition of his 
revocation proceeding is credited as time 
served on original sentence and thus limits 
the permissible parameters of the trial 
court s power to revoke. Dickev v. State, 157 
Ga. App. 13, 276 S.E.2d 75 (1981). 

Probationer imprisoned and awaiting final 
determination of whether he violated proba- 
tion and what part of his original sentence 
should be executed is not serving that part 
of his sentence which is subsequently or- 
dered executed when violation is found. 
During this period, the probationer is con- 
tinuing to serve the probated part of his 
sentence prior to final disposition of the 
revocation petition. Such periods do not 
suspend the running of the original sen- 
tence received and the probationer is enti- 
tled to assert that those periods pending a 
determination of probation revocation are, 
in effect, served under probation and shall 
be considered as time served and shall be 
deducted from and considered a pa; t of the 
time he was originally sentenced to serve. 
Dickey v. State, 157 Ga. App. 13, 276 S.E.2d 
75(1981). 

No credit for time served awaiting hear- 
ing. — Time served by probationers incar- 
cerated while awaiting a probation revoca- 
tion hearing will not be credited toward any 
sentence imposed upon the probationers at 
such hearing. Penney v. State, 157 Ga. App. 
737, 278 S.E.2d 460 (1981). 

Service of suspended sentence cannot ex- 
ceed maximum confinement sentence. — 
Once service of suspended sentence begins, 
either by incarceration or probation, it can- 
not exceed maximum sentence of confine- 
ment which could have been imposed. 
Turnipseed v. State, 147 Ga. App. 735, 250 
S.E.2d 186 (1978). 

Increase of original sentence prohibited. 
— While under § 42-8-34 the trial court 
does have jurisdiction to change or modify 
the terms of the original sentence, it cannot, 
under this section and § 17-10-1, increase 
the sentence originally passed. Turnipseed v. 
State, 147 Ga. App. 735, 250 S.E.2d 186 
(1978). 

The revoking court may not increase the 
original sentence. Thus the language "mod- 
ify or change" in § 42-8-34 is limited by this 
section. England v. Newton, 238 Ga. 534, 233 
S.E.2d 787 (1977). 



Where, after the original suspended sen- 
tence in a bastardy proceeding was entered 
in 1968, the court held a hearing in 1974 
and ordered child support payments to in- 
clude medical bills, and certain arrearage 
caught up as conditions of probation, and a 
second post-sentence hearing was held in 
1978, at a time when the defendant was not 
in arrears under either of the prior orders, 
the purpose ofthe hearing being for recon- 
sideration of the terms of defendant's sus- 
pended sentence, after which the defen- 
dant's weekly payments were increased from 
$12.50 to $25.00, the effect was to increase 
the terms of the sentence originally passed 
and as such it was illegal. Turnipseed v. State, 
147 Ga. App. 735, 250 S.E.2d 186 (1978). 

Decisions Under Prior Law 

1. Decisions Under Code 1933, § 27-2702 

Deduction of probation served from sub- 
sequent imprisonment. — One serving sen- 
tence on probation is fulfilling sentence as 
effectually as if confined in jail or on chain 
gang, and accordingly, if after a hearing the 
order granting such probation is revoked, 
the time served by the defendant before the 
revocation must be counted in his favor and 
deducted from the period of service im- 
posed. Roper v. Mallard, 193 Ga. 684, 19 
S.E.2d 525 (1942). 

Discretion of judge to suspend or probate 
sentence. — A judge imposing sentence is 
granted power to suspend or probate the 
sentence under such rules and regulations 
as he thinks proper. Cross v. Huff, 208 Ga. 
392, 67S.E.2d 124 (1951). 

The judge has the right and authority to 
revoke the suspension or probation, after 
notice and a hearing, when the defendant 
violates any of the rules and regulations 
prescribed by the court. Simmons v. State, 96 
Ga. App. 718, 101 S.E.2d 111 (1957). 

Notice and hearing required for revoca- 
tion. — The judge has the right and author- 
ity to revoke suspension or probation, after 
notice and a hearing, when the defendant 
violates any of the rules and regulations 
prescribed by the court. Cross v. Huff, 208 
Ga. 392, 67 S.E.2d 124 (1951). 

Where a probation sentence is given, the 
trial judge is without authority to reserve the 
right to revoke the sentence without notice 



295 



42-8-38 



PENAL INSTITUTIONS 



42-8^8 



Decisions Under Prior Law (Cont'd) 
1. Decisions Under Code 1933, 
§ 27-2702 (Cont'd) 

or hearing. Balkcom v. Gunn, 206 Ga. 167, 
56S.E.2d482 (1949). 

Violation of prescribed rules required for 
incarceration. — Where no rules or regula- 
tions are prescribed, and no violation of a 
prescribed rule or regulation is alleged, the 
court is without authority to order the de- 
fendant incarcerated upon the theory that 
he has violated the terms and conditions of a 
probation sentence. Cross v. Huff, 208 Ga. 
392, 67 S.E.2d 124 (1951); Simmons v. State, 
96 Ga. App. 718, 101 S.E.2d 111 (1957). 

2. Decisions Under Code 1933, § 27-2705 

Right to hearing. — The probationer has 
right to notice and hearing upon question of 
revocation, and an order of revocation with- 
out a hearing is void. Roberts v. Lowry, 160 
Ga. 494, 128 S.E. 746 (1925). 

Requirement of and meaning of "due 
examination." — It was general practice in 
Georgia for a warrant to be issued by a court 
on a written petition calling to the court's 
attention the alleged delinquency of a pro- 
bationer, but the only requirement was that 
the defendant receive "due examination," 
which means that he be given notice and an 
opportunity to be heard, and there being no 
requirement that the proceeding be initi- 
ated by written petition of the solicitor gen- 
eral (now district attorney), technical de- 
fects in such a petition when filed would not 
vitiate the warrant issued by the court or 
subsequent proceedings thereon, provided 
the requirements of notice and opportunity 
to be heard are complied with. Jackson v. 
State, 91 Ga. App. 291, 85 S.E.2d 444 (1954), 
overruled on other grounds, Jackson v. 
Jones, 254 Ga. 127, 327 S.E.2d 206 (1985). 

Effect of deprivation , of liberty without 
giving notice and hearing. — To deprive a 
defendant of his liberty upon the theory that 
he has violated any of the rules and regula- 
tions prescribed in a suspended or probated 
sentence without giving him notice and op- 
portunity to be heard upon the question of 
whether or not he has violated such rules 
and regulations, would violate one of the 
fundamental tenets that a person shall not 
be deprived of his liberty without due pro- 
cess of law, which includes notice and an 



opportunity to be heard. Lester v. Foster, 207 
Ga. 596, 63 S.E.2d 402 (1951). 

Review of revocation by appeals court. — 
Where, after due examination, the court 
revokes its order to the probationer to serve 
the remainder of his sentence outside the 
confines of the chain gang, jail, or other 
place of detention, Court of Appeals will not 
interfere unless a manifest abuse of discre- 
tion on the part of the lower court appears. 
Brown v. State, 71 Ga. App. 303, 30 S.E.2d 
783 (1944). 

The Court of Appeals will not interfere 
unless a manifest abuse of discretion ap- 
pears. Waters v. State, 80 Ga. App. 104, 55 
S.E.2d 677 (1949); Bryant v. State, 89 Ga. 
App. 891, 81 S.E.2d 556 (1954). 

Discretion of judge. — The judge is the 
trier of the facts in a case for the revocation 
of probation and has very wide discretion 
and unless a manifest abuse of such discre- 
tion on the part of the lower court appears, 
the appellate court will not interfere. 
Alewine v. State, 79 Ga. App. 779, 54 S.E.2d 
507 (1949). 

The discretion of the judge in revoking 
probation will not be interfered with unless 
grossly abused. Olsen v. State, 21 Ga. App. 
795, 95 S.E. 269 (1918); Towns v. State, 25 
Ga. App. 419, 103 S.E. 724 (1920). 

Leaving jurisdiction of court is ground for 
revocation. See Shamblin v. Penn, 148 Ga. 
592, 97 S.E. 520 (1918). 

Quantum of evidence needed to revoke 
probation. — The degree of evidence neces- 
sary to convict in a criminal case being that 
which convinces the jury of the guilt of the 
defendant beyond a reasonable doubt, and 
the degree necessary to support the revoca- 
tion of a probation sentence being only 
some evidence that the defendant has vio- 
lated the conditions of the probation, which 
satisfies the trial court hearing the same in 
the exercise of a very wide discretion — it is 
not necessary to show that the defendant has 
been convicted of the act constituting the 
condition of the probation; the sole issue 
before the trial court is that of whether or 
not the defendant has committed the act. 
Bryant v. State, 89 Ga. App. 891, 81 S.E.2d 
556 (1954). 

Standard of certainty for establishing vio- 
lation of conditions. — Violation of the 
conditions of probation must be established 
with reasonable certainty so as to satisfy the 



296 



42-8-38 



PROBATION 



42-8-38 



conscience of the court of the truth of the 
violation. It does not have to be established 
beyond a reasonable doubt. In such a hear- 
ing if the evidence inclines a reasonable and 
impartial mind to the belief that the defen- 
dant violated the terms of his probation, it is 
sufficient. Sparks v. State, 77 Ga. App. 22, 47 
S.E.2d678 (1948). 

Violation of probation condition determi- 
native for revocation. — It is not the record 
of conviction, but fact of guilt of violation of 
a condition of probation, which determines 
whether probation should be revoked, and 
in determining this question the trial judge 
is not bound by the same rules of evidence as 
a jury in passing upon the guilt or innocence 
of the accused in the first instance. It is not 
necessary that the evidence support the find- 
ing beyond a reasonable doubt or even by a 
preponderance of the evidence; the judge is 
the trier of the facts, and he has a very wide 
discretion. Bryant v. State, 89 Ga. App. 891, 
81 S.E.2d556 (1954). 

Judge conducting proceeding himself. — 
It is not improper for the trial judge to issue 
an order or warrant for the arrest of the 
probationer and to conduct the proceeding 
himself. Waters v. State, 80 Ga. App. 104, 55 
S.E.2d677 (1949). 

When presumption of proper notice and 
opportunity to be heard invoked. — Where a 
probationer is arrested on an order of the 
trial court directing that he be placed in 
custody until a given date and then brought 
before the court for examination to deter- 
mine the issue of whether or not his proba- 
tion shall be revoked, and such probationer 
is brought before the court under arrest at 
the time and place specified, and counsel for 
the probationer also appears and represents 
him at the hearing, it will be presumed that 
he had proper notice and ample opportu- 
nity to be heard, it not appearing that coun- 
sel made any motion for a continuance to 
allow additional time to prepare the defense. 
Waters v. State, 80 Ga. App. 104, 55 S.E.2d 
677 (1949). 

Quantum of evidence necessary for revo- 
cation. — Under the provisions of Code 
1933, § 27-2705 (now this section), the ex- 
amination of the defendant to determine 
whether he has violated the conditions of his 
probation is conducted by the court without 
a jury, and the quantum of evidence neces- 
sary to convince the court that a criminal act 



authorizing revocation has been committed 
is different from that on a trial of the 
defendant for such offense under an indict- 
ment charging him therewith. Price v. State, 
91 Ga. App. 381, 85 S.E.2d 627 (1955). 

Probationer entitled to fair treatment. — 
While probation is matter of grace, proba- 
tioner is entided to fair treatment and not to 
be made the victim of baseless impression or 
caprice. Sparks~v. State, 77 Ga. App. 22, 47 
S.E.2d678 (1948). 

Effect on defendant's sentence of not 
prescribing rules and regulations. — To de- 
prive a defendant of his liberty upon the 
theory that he has violated rules and regula- 
tions prescribed in his sentence, when no 
rules, regulations, conditions, limitations, or 
restrictions were imposed by such sentence, 
would deprive the defendant of "due pro- 
cess of law." Cross v. Huff, 208 Ga. 392, 67 
S.E.2d 124 (1951). 

Sentence held to be too vague. — Where 
sentence on charge of abandonment did not 
specify whether payments required were in 
the nature of fine or as payments for the 
support of the defendant's child or children, 
and failed to specify where or to whom the 
payments were to be made, this provision of 
the sentence was too vague and indefinite to 
be enforceable, and a revocation of the 
probation sentence solely on the ground 
that the defendant did not make the pay- 
ments specified was without authority of law. 
Guest v. State, 87 Ga. App. 184, 73 S.E.2d 218 
(1952). 

Ambiguous sentence construed in favor of 
defendant. — A sentence which is, in its 
entirety, ambiguous and doubtful should be 
given that construction which favors the 
liberty of the individual; sentences in crimi- 
nal cases to be stricdy construed, and, on a 
hearing of an issue made by motion to 
revoke a probation sentence on the theory 
that certain rules and regulations prescribed 
therein have been violated, it must appear 
that the rules were in fact prescribed with 
definiteness and certainty in the sentence, 
and that there has been an infraction 
thereof, since to deprive the prisoner of his 
liberty otherwise would be a violation of due 
process. Guest v. State, 87 Ga. App. 184, 73 
S.E.2d218 (1952). 

Refusal to discharge upon habeas corpus 
not error. — Where the original probation 
was void, it was not error to refuse to dis- 



297 



42-8-38 



PENAL INSTITUTIONS 



42-8-38 



Decisions Under Prior Law (Cont'd) 
2. Decisions Under Code 1933, 
§ 27-2705 (Cont'd) 

charge defendant upon writ of habeas cor- 
pus. Shamblin v. Penn, 148 Ga. 592, 97 S.E. 
520 (1918); Roberts v. Lowry, 160 Ga. 494, 
128 S.E. 746 (1925). 
Revocation order not final judgment. — 



The order revoking probationer's parole is 
not such a final judgment as is subject to 
review under Art. 2, Ch. 6, T. 5. 
Antonopoulas v. State, 151 Ga. 466, 107 S.E. 
156 (1921); Troup v. State, 27 Ga. App. 636, 
109 S.E. 681 (1921); Jackson v. State, 27 Ga. 
App. 648, 110 S.E. 423 (1921). 



OPINIONS OF THE ATTORNEY GENERAL 



Affidavit required for arrest of probation 
violator. — Valid warrant for arrest of pro- 
bation violator must be accompanied by 
affidavit, and to be valid, the affidavit must 
be sworn to under oath and signed by 
affiant. 1981 Op. Att'y Gen. No. 81-99. 

Arrest of probationer without warrant. — 
If a probation violator is arrested without a 
warrant, it would be incumbent upon the 
probation supervisor or other arresting of- 
ficer to procure a warrant within the 48-hour 
period of time specified in § 17-4-62. 1988 
Op. Att'y Gen. No. U88-14. 

Personal knowledge of affiant. — Affiant 
need not have personal knowledge of infor- 
mation to which he swears when executing 
affidavit for arrest of probation violator. 1981 
Op. Att'y Gen. No. 81-99. 

Where hearing held. — Probation violator 
may be returned to sentencing court for 
hearing or he may have hearing in court of 
equivalent original criminal jurisdiction 
within county wherein probationer resides 
for purposes of supervision upon the giving 
of ten days' written notice to the sentencing 
court prior to the hearing on the merits v 
1965-66 Op. Att'y Gen. No. 66-257. 

Fingerprinting of offenders. — This of- 
fense is one for which those charged with a 
violation are to be fingerprinted. 1996 Op. 
Att'y Gen. No. 96-17. 

Revocation only by circuit imposing pro- 
bation. — Only the circuit imposing first 
offender probation may revoke that period 
of probation, even though supervision has 
been transferred to another judicial circuit. 
1980 Op. Att'y Gen. No. 80-79. 

Violation committed subsequent to impo- 
sition of sentence. — A probated sentence 
may be revoked if the sentence being re- 
voked is in effect and being served at the 
time the order of revocation is made, even if 
the act constituting the violation was com- 
mitted prior to the commencement of ser- 



vice of the probated sentence; provided that 
the violation was committed subsequent to 
the imposition of sentence. 1974 Op. Att'y 
Gen. No. U74-107. 

Acceptance into state penal system. — 
Once a court revokes probation and orders 
serving of sentence, the clerk sends notice to 
Board of Offender Rehabilitation (Correc- 
tions) and the state has an obligation to 
accept such persons into state penal system. 
1982 Op. Att'y Gen. No. 82-33. 

Collection of funds for suspended sen- 
tences. — Upon proper court order, the 
probation officers would be authorized to 
collect funds made payable in connection 
with suspended sentences. 1963-65 Op. Att'y 
Gen. p. 4. 

Issuance of warrant against probationer. 
— Issuance of warrant against pejson serv- 
ing probated sentence does not stop run- 
ning of time of the probated sentence; if 
probated sentence is revoked pursuant to 
the provisions for a hearing and judicial 
determination as set forth by this section, 
then the length of time to be served on the 
original sentence shall be time of sentence 
remaining after deduction is made for time 
which the probationer served under proba- 
tion. 1967 Op. Att'y Gen. No. 67-391. 

Crediting probation time toward impris- 
onment. — Upon revocation of probated 
sentence, offender cannot be returned to 
confinement for period of time in excess of 
original probationary period. 1974 Op. Att'y 
Gen. No. U74-107. 

Crediting time served outside prison upon 
revocation. — This section does not mean 
that in every case where probation is re- 
voked, without more, the prisoner is not to 
receive credit for the time served outside the 
confines of the jail or prison, but it was the 
intention of the General Assembly that the 
judge revoking probation have the power to 
either give or deny such credit; it, therefore, 
is necessary to refer to the language of the 



298 



42-8-39 



PROBATION 



42-8-39 



order revoking probation. 1957 Op. Att'v 
Gen. p. 201. 

Crediting confinement period after revo- 
cation. — After revocation of probated sen- 
tence, in determining remaining balance of 
the sentence, defendant is credited with 
time on probation; however, to prevent the 
defendant from receiving double credit for 
this time, jail time credit should not be 
awarded toward the period of confinement 
ordered after revocation of a probated sen- 
tence. 1973 Op. Att'y Gen. No. 73-1. 

Ambiguous orders granting credit to be 
construed in prisoner's favor. — Where or- 
der revoking probation is ambiguous with 
respect to whether prisoner should or 
should not receive credit for time served 
outside prison, it would be necessary to give 
credit for such time, under the rulings that 
an order of probation, and the order revok- 
ing same, is a part of the sentence and in 
cases of ambiguity, a sentence is to be con- 



strued so as to give the benefit of the doubt 
to the accused. 1957 Op. Att'y Gen. p. 201. 

Credit for time after revocation. — For 
discussion of the effect of Stephens v. State, 
245 Ga. 835, 268 S.E.2d 330 (1980), which 
decided whether, upon revocation of proba- 
tion entered under the terms of the First 
Offender Act, § 42-8-60, a criminal defen- 
dant was entitled to credit for time already 
spent of first offender probation, see 1983 
Op. Att'y GemNo. 83-6. 

Running of sentence imposed subsequent 
to probation. — A sentence imposed subse- 
quent to revocation of first offender proba- 
tion should run from the date that sentence 
is imposed. 1976 Op. Att'y Gen. No. 76-16. 

Running of probation preceded by impris- 
onment. — Probated sentence preceded by 
term of imprisonment begins upon offend- 
er's fulfillment, including parole supervi- 
sion, of the imprisonment obligation. 1974 
Op. Att'y Gen. No. U74-107. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal 
Law, §§ 567-579. 

C.J.S. — 24 C.J.S., Criminal Law, 
§§ 1549-1568. 

ALR. — Right to assistance of counsel at 
proceedings to revoke probation, 44 ALR3d 
306. 

Propriety, in imposing sentence for origi- 
nal offense after revocation of probation, of 
considering acts because of which probation 
was revoked, 65 ALR3d 1100. 

Acquittal in criminal proceeding as pre- 
cluding revocation of probation on same 
charge, 76 ALR3d 564. 

Propriety of revocation of probation for 
subsequent criminal conviction which is sub- 
ject to appeal, 76 ALR3d 588. 

Admissibility, in state probation revoca- 
tion proceedings, of evidence obtained 
through illegal search and seizure, 77 
ALR3d 636. 

Admissibility, in state probation revoca- 
tion proceedings, of incriminating statement 
obtained in violation of Miranda rule, 77 
ALR3d 669. 



Right of defendant sentenced after revo- 
cation of probation to credit for jail time 
served as a condition of probation, 99 
ALR3d 781. 

Admissibility of hearsay evidence in proba- 
tion revocation hearings, 1 1 ALR4th 999. 

Power of court, after expiration of proba- 
tion term, to revoke or modify probation for 
violations committed during the probation 
term, 13 ALR4th 1240. 

Power of court to revoke probation for 
acts committed after imposition of sentence 
but prior to commencement of probation 
term, 22 ALR4th 755. 

Defendant's right to credit for time spent 
in halfway house, rehabilitation center, or 
other restrictive environment as condition of 
probation, 24 ALR4th 789. 

Probation revocation: insanity as defense, 
56ALR4th 1178. 

Determination that state failed to prove 
charges relied upon for revocation of proba- 
tion as barring subsequent criminal action 
based on same underlying charges, 2 
ALR5th 262. 



42-8-39. Suspension of sentence does not place defendant on probation. 

In all criminal cases in which the defendant is found guilty or in which a 
plea of guilty or of nolo contendere is entered and in which the trial judge 



299 



42-8-39 



PENAL INSTITUTIONS 



42-8-39 



after imposing sentence further provides that the execution of the sentence 
shall be suspended, such provision shall not have the effect of placing the 
defendant on probation as provided in this article. (Ga. L. 1956, p. 27, § 13; 
Ga. L. 1960, p. 1148, § 2; Ga. L. 1965, p. 413, § 4.) 

JUDICIAL DECISIONS 



Comparison to other sections. — This 
section deals with the effect of suspended 
sentences while §§ 17-10-1 and 17-10-4 deal 
with authority to impose them. Cross v. State, 
128 Ga. App. 774, 197 S.E.2d 853 (1973). 

Authorized conditions. — A condition 
which would be authorized in the case of a 
probated sentence would be authorized in 
the case of a suspended sentence. 
Falkenhainer v. State, 122 Ga. App. 478, 177 
S.E.2d380 (1970). 

Effect of amendment. — This section was 
amended to specify that suspended sen- 
tences not come under this article, but it did 
not provide any change allowing the court to 
suspend sentences. Cross v. State, 128 Ga. 
App. 774, 197 S.E.2d 853 (1973). 

Suspension upon condition did not 
amount to probation. — Suspension of a 
convicted drunk driver's sentence upon con- 
dition that he not drive for 120 days did not 
have the effect of placing him on probation, 
where his driver's license was automatically 
suspended for 120 days. Williams v. State, 
191 Ga. App. 217, 381 S.E.2d 399 (1989). 

Distinguishing length of service for sus- 
pended and probated sentences. — A court 



may, at the time of sentencing, specify the 
amount to be paid by the parent for the 
support of the minor child and may suspend 
the service of the sentence pending the 
minority of the child. When the child 
reaches majority, the sentence of course is at 
an end. However, service of any sentence so 
suspended in abandonment cases may be 
ordered at any time before the child reaches 
age of 21. However, where a sentence is 
merely probated, the probationary feature 
of the sentence ends when the elapsed time 
equals the maximum sentence of confine- 
ment which could have been imposed. 
Entrekin v. State, 147 Ga. App. 724, 250 
S.E.2d 177 (1978). 

Abuse of discretion by court. — A trial 
court abuses its discretion when it places a 
case on the dead docket over defendant's 
objection. Newman v. State, 121 Ga. App. 
692, 175 S.E.2d 144 (1970). 

Cited in Todd v. State, 107 Ga. App. 771, 
131 S.E.2d 201 (1963); Rowland v. State, 120 
Ga. App. 248, 170 S.E.2d 58 (1969); 
Falkenhainer v. State, 122 Ga. App. 478, 177 
S.E.2d 380 (1970); Jones v. State, 154 Ga. 
App. 581, 269 S.E.2d 77 (1980). 



OPINIONS OF THE ATTORNEY GENERAL 



Running of suspended sentence condi- 
tioned on payment of fine. — Suspended 
sentence conditioned on payment of fine 
does not begin to run if fine is not paid until 
state or defendant initiates action to have 
suspension revoked. 1981 Op. Att'y Gen. No. 
U81-42. 

Effect of suspension of part of sentence. 
— In the imposition of a sentence, if the trial 
court suspends service of part of sentence, 
the provision for suspension shall not have 
the effect of placing the defendant on pro- 
bation; thus, once a probated sentence is 
revoked and said probationer has been sen- 
tenced to a definite period of years of im- 
prisonment and the remainder of his sen- 
tence has been suspended, this sentence 



does not have the effect of placing the 
defendant on probation and, therefore, 
such sentence cannot be revoked. 1968 Op. 
Att'y Gen. No. 68-165. 

Modification of original sentence upon 
probation. — When a prisoner is placed on 
probation, the original sentence is subject to 
modification by the rendering court at any 
time during the period of probation; the 
judge imposing sentence is granted the 
power and authority to revoke suspension or 
probation when the defendant has violated 
any of the rules or regulations prescribed by 
the court. 1968 Op. Att'y Gen. No. 68-165. 

Remanding offender to prison upon sus- 
pension of sentence. — The State Board of 
Pardons and Paroles cannot remand of- 



300 



42-8-40 



PROBATION 



42-8-40 



fender to prison where sentence has been 
suspended by court. 1963-65 Op. Att'y Gen. 
p. 36. 



RESEARCH REFERENCES 



Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal 
Law, §§ 567-579. 

C.J.S. — 24 C.J.S., Criminal Law, §§ 1458, 
1549-1568. 

ALR. — What constitutes "good behav- 
ior" within statute or judicial order expressly 
conditioning suspension of sentence 
thereon, 58 ALR3d 1156. 



Pretrial diversion: statute or court rule 
authorizing suspension or dismissal of crim- 
inal prosecution on defendant's consent to 
noncriminal alternative, 4 ALR4th 147. 

Appealability of order suspending imposi- 
tion or execution of sentence, 51 ALR4th 
939. 



42-8-40. Confidentiality of papers; exemption from subpoena; 
declassification. 

All reports, files, records, and papers of whatever kind relative to the 
state-wide probation system are declared to be confidential and shall be 
available only to the probation system officials and to the judge handling a 
particular case. They shall not be subject to process of subpoena. However, 
these records may be declassified by a majority vote of the board whenever 
the board deems it advisable. (Ga. L. 1956, p. 27, § 19; Ga. L. 1958, p. 15, 
§ ID 

Cross references. — Inspection of public 
records generally, § 50-18-70 et seq. 

JUDICIAL DECISIONS 



Applicability to presentence investigation 
reports. — This section applies to 
presentence investigation reports. Mills v. 
State, 244 Ga. 186, 259 S.E.2d 445 (1979). 

Right to verbatim copy of presentence 
report. — A defendant has no constitutional 
right to a verbatim copy of the presentence 
investigation report for use in sentence re- 
view process. Hence, this section is not un- 
constitutional on the ground it prohibits a 
defendant from obtaining access to the re- 
port. Mills v. State, 244 Ga. 186, 259 S.E.2d 
445 (1979). 

Right to compulsory process. — This sec- 
tion unconstitutionally limited a criminal 
defendant's constitutional right to compul- 
sory process where it was applied to prevent 
the defendant obtaining a copy of the results 
of a drug test in order to put forth a defense 
in a criminal trial. Dean v. State, 267 Ga. 306, 
477S.E.2d573 (1996). 



Revealing presentence report to counsel. 

— If a presentence probation report con- 
tains any matter adverse to the defendant 
and likely to influence the decision to sus- 
pend or probate the sentence, it should be 
revealed to defense counsel by the trial 
judge in advance of the presentence hearing 
to give the accused an opportunity for expla- 
nation or rebuttal. Benefield v. State, 140 Ga. 
App. 727, 232 S.E.2d 89 (1976). 

Testimony relating to confidential records 
and petitions barred. — Where records and 
petitions to revoke probation have been 
declared confidential and not subject to 
process of subpoena by statute, the trial 
court in probation revocation hearing does 
not err in refusing to admit testimony relat- 
ing to them. Penney v. State, 157 Ga. App. 
737, 278 S.E.2d 460 (1981). 



301 



42-8-41 PENAL INSTITUTIONS 42-8-43 

RESEARCH REFERENCES 

Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal ALR. — Right of convicted defendant or 

Law, §§ 567-579. prosecution to receive updated presentence 

C.J.S. — 24 C.J.S., Criminal Law, report at sentencing proceedings, 22 

§§ 1549-1568. ALR5th 660. 

42-8-41. Cooperation of state and local entities with probation officials. 

All state and local departments, agencies, boards, bureaus, commissions, 
and committees shall cooperate with the probation officials. (Ga. L. 1956, p. 
27, § 17.) 

42-8-42. Provision of office space and clerical help by department and 
counties. 

The department may provide office space and clerical help wherever 
needed. The counties of this state shall cooperate in this respect and, 
wherever possible, shall furnish office space if needed. (Ga. L. 1956, p. 27, 

§ 18.) 

42-8-43. Effect of article on existing county probation systems. 

Except as otherwise provided by law, any county probation system in 
existence on February 8, 1956, shall not be affected by the passage of this 
article, regardless of whether the law under which the system exists is 
specifically repealed by this article. The personnel of the system shall 
continue to be appointed and employed under the same procedure as used 
prior to February 8, 1956, and the system shall be financed under the same 
method as it was financed prior to February 8, 1956. However, the 
substantive provisions of this article relative to probation shall be followed, 
and to this end any probation officer of such system shall be deemed to be 
the same as a probation supervisor, with the probation supervisor assigned 
by the department serving in a liaison capacity between the county 
probation system and the department. (Ga. L. 1956, p. 27, § 15; Ga. L. 
1972, p. 604, § 11.) 

JUDICIAL DECISIONS 

Editor's notes. — In light of the similarity specified grand jury recommendations for 

of the provisions, decisions under former the appointment of such officers, and sets 

Code 1933, § 27-2703, prior to revision by forth in chronological order the appoint- 

Ga. L. 1956, p. 27, § 15 are included in the ments made by the judge in pursuance 

annotations for this Code section. thereto, and where the appointment of the 

Authority for appointment of probation petitioner is shown to have been made at a 

officers. — Where, in a petition for manda- time when the number of such officers au- 

mus to compel the payment of salary of a thorized by the grand jury had not been 

probation officer, the petition enumerates filled by appointments of the judge, there 

302 



42-8-43.1 PROBATION 42-8-43.1 

was authority for the appointment of the properly appointed to office with a salary 

probation officers. MacNeill v. Wertz, 200 fixed, a probation officer is entitled to its 

Ga. 429, 37 S.E.2d 362 (1946). salary, whether or not he performs the du- 

Grand jury's intent must be clear and ties of the office, MacNeill v. Wertz, 200 Ga. 

understandable. — Where, by an Act of the 429, 37 S.E.2d 362 (1946). 

legislature, an office is created to become Vacancy in probation office. — The fact 

effective and operative upon the recommen- that the office of probation officer is not 

dation of the grand jury, no particular form being filled by anyon e does not nullify the 

or language is required in the presentments legal existence of the office. MacNeill v. 

so long as the intent of the grand jury's Wertz 200 Ga r429> 37 s E-2 d 362 (1946). 



Assistant probation officers. — Assistant 



recommendation is clear and understand- 
able. MacNeill v. Wertz, 200 Ga. 429, 37 
<sF9H 3fi9 C\Qdf>\ probation officers appointed by judges of 

' 1 ^ * d r l *• cr me superior court are answerable only to the 

Creation of office of probation officer. — r . . , , ' 

TT , . r c , . . court making the appointment, and serve at 

Upon recommendation of grand iury, the , , r c o u 

£ c . . or . ° ' • the pleasure of such court. Such persons are 

office of probation officer became operative r _ / 

and legally existed, even though no one was n0t , COUnt y °® cers ' nor / re the y cou ^ 
appointed thereto, and the appointment of employees as all county officers and employ- 
ee official became mandatory upon the ees hav ^ duties to perform that relate to 
judge. MacNeill v. Wertz, 200 Ga. 429, 37 P owers delegated to the counties. Civil Serv. 
S.E 2d 362 (1946). Bd - v - MacN eiH, 201 Ga. 643, 40 S.E.2d 655 
Salary of probation officer. — Where 0946). 

OPINIONS OF THE ATTORNEY GENERAL 

Systems cannot be converted into private system operated by a private corporation 
operations. — Any remaining county proba- without legislative authority. 1989 Op. Att'y 
tion systems cannot be converted into a Gen. No. U89-8. 

42-8-43.1. Participation in cost of county probation systems; merging of 
county systems into state system. 

(a) This Code section shall apply to county probation systems of all 
counties of this state having a population of 400,000 or more according to 
the United States decennial census of 1980 or any future such census, any 
provision of Code Section 42-8-43 to the contrary notwithstanding. The 
department shall participate in the cost of the county probation systems 
subject to this Code section for fiscal years 1982-83 and 1983-84. The 
department shall compute the state cost per probationer on a state-wide 
basis for each of the aforesaid fiscal years pursuant to the formula used by 
the Office of Planning and Budget to determine the state cost for probation 
for budgetary purposes. For each of the aforesaid fiscal years, the depart- 
ment shall pay to the governing authority of each county maintaining a 
county probation system subject to this Code section the percentage shown 
below of the state-wide cost per probationer for each probationer being 
supervised under the respective county probation system as of the first day 
of each of said fiscal years: 

(1) For fiscal year 1982-83, 10 percent; and 

(2) For fiscal year 1983-84, 10-100 percent. 

303 



42-8-43.1 PENAL INSTITUTIONS 42-8-43.1 

(b) The funds necessary to participate in the cost of county probation 
systems under subsection (a) of this Code section shall come from funds 
appropriated to the department for the purposes of providing state 
participation in the cost of county probation systems. The payments to 
counties provided for in subsection (a) of this Code section shall be made 
by, or pursuant to the order of, the department in single lump sum payment 
for each fiscal year, with the payment for fiscal year 1982-83 being made by 
May 1, 1983, and the one for fiscal year 1983-84 by May 1, 1984. As a 
condition necessary for a county to qualify for department participation in 
the cost of the county's probation system, the employees of such county 
probation systems shall be subject to the supervision, control, and direction 
of the department. 

(c) Each county probation system subject to the provisions of this Code 
section shall become a part of the state-wide probation system provided for 
by this article effective on July 1, 1984, and shall be fully funded from state 
funds as a part of the state-wide probation system beginning with fiscal year 
1984-85. The employees of said county probation systems, at their option, 
shall become employees of the department on the date said county systems 
become a part of the state-wide probation system and, on or after said date, 
said employees shall be subject to the salary schedules and other personnel 
policies of the department, except that the salaries of such employees shall 
not be reduced as a result of becoming employees of the department. 

(d) When an employee of a county probation system of any county of this 
state having a population of 550,000 or more according to the United States 
decennial census of 1980 or any future such census becomes an employee 
of the department pursuant to subsection (c) of this Code section at the 
same or a greater salary, the change in employment shall not constitute 
involuntary separation from service or termination of employment within 
the meaning of any local retirement or pension system of which the 
employee was a member at the time of such change in employment, and the 
change in employment shall not entitle the employee to begin receiving any 
retirement or pension benefit whatsoever under any such local retirement 
or pension system. (Code 1981, § 42-8-43.1, enacted by Ga. L. 1982, p. 1605, 
§ 1; Ga. L. 1983, p. 421, § 1.) 

Editor's notes. — Ga. L. 1982, p. 1605, § 2 proval as to counties with a population of 
provided that if either a local Act or a 550,000 or more, according to the United 
general law of local application were States decennial census of 1980 or any future 
adopted and became effective on or before such census, and declared that any county 
April 1, 1983, expressing approval that a affected by it approves its county probation 
county probation system affected by this system becoming part of the state-wide pro- 
Code section become part of the state-wide bation system in accordance with this Code 
probation system in accordance with this section. Ga. L. 1983, p. 3982, § 1, effective 
Code section, then this Code section would March 14, 1983, expressed such approval for 
become effective on April 1, 1983, as to me county probation system of DeKalb 
county probation systems affected by it. Ga. County. 
L. 1982, p. 5099, § 1 expressed such ap- 

304 



42-8-43.2 PROBATION 42-8-43.2 

JUDICIAL DECISIONS 

Retirement by operation of law. — Since duties without a reduction in salary and 
the General Assembly provided that, upon could continue participation in their county 
takeover of a county probation system by the pension plans, the employees were not re- 
state system, the employees of the county tired by operation of law under their pen- 
system could at their option become employ- sion plans. Barnett v. Fulton County, 255 Ga. 
ees of the state system performing the same 419, 339 S.E.2d 236 (1986). 

OPINIONS OF THE ATTORNEY GENERAL 

Supervision of probationers. — The Pro- ployee's salary is not reduced. 1984 Op. Att'y 

bation Division of the Department of Of- Gen. No. 84-38. 

fender Rehabilitation (Corrections) is re- Transfer of accrued personal leave by 

sponsible for supervising persons who have employees. — No leave accrued by a county 

received probated sentences from the Traffic employee under a county personnel system 

Court of the City of Atlanta. 1984 Op. Att'y can be transferred when the employee be- 

Gen. No. 84-41. comes a state employee since assumption of 

Seniority of employees becoming state such leave by the state would be a gratuity 

employees. — A county employee who be- prohibited by Ga. Const. 1983, Art. Ill, Sec. 

comes a state employee pursuant to this VI, Para. VI and would violate Ga. Const, 

section will have whatever seniority is autho- 1983, Art. VII, Sec. IV, Para. X, which pro- 

rized by the Rules and Regulations of the hibits the assumption of any debt owed by 

State Personnel Board, so long as the em- the county. 1984 Op. Att'y Gen. No. 84-38. 

42-8-43.2. Payments by state to county probation systems; merger of county 
systems into state-wide system. 

(a) This Code section shall apply to county probation systems, including 
state court adult probation systems, of each county having a population of 
more than 100,000 in any metropolitan statistical area having a population 
of not less than 200,000 nor more than 230,000 according to the United 
States decennial census of 1980 or any future such census, any provision of 
Code Section 42-8-43 to the contrary notwithstanding. The department 
shall participate in the cost of the county probation systems subject to this 
Code section for fiscal year 1987-88. The department shall compute the 
state cost per probationer on a state-wide basis for such fiscal year pursuant 
to the formula used by the Office of Planning and Budget to determine the 
state cost for probation for budgetary purposes. For said fiscal year, the 
department shall pay to the governing authority of each county maintaining 
a county probation system subject to this Code section 10 percent of the 
state-wide cost per probationer for each probationer being supervised 
under the respective county probation system as of the first day of said fiscal 
year. The funds necessary to participate in the cost of county probation 
systems under this subsection shall come from funds appropriated to the 
department for the purposes of providing state participation in the cost of 
county probation systems. The payments to counties provided for in this 
subsection shall be made by, or pursuant to the order of, the department in 
single lump sum payment for fiscal year 1987-88, with the payment being 
made by May 1, 1988. As a condition necessary for a county to qualify for 

305 



42-8-43.3 PENAL INSTITUTIONS 42-8-43.3 

department participation in the cost of the county's probation system, the 
county shall cause to be made an independent audit of the financial affairs 
and transactions of all funds and activities of the county probation system 
and agree to be responsible for any discrepancies, obligations, debts, or 
liabilities of such county probation system which may exist prior to the 
department's participation in the cost of the county's probation system. As 
a further condition necessary for a county to qualify for department 
participation in the cost of the county's probation system, the employees of 
such county probation systems shall be subject to the supervision, control, 
and direction of the department. 

(b) The county probation system of any such county shall become a part 
of the state-wide probation system provided for by this article effective July 
1, 1988, and shall be fully funded from state funds as part of the state-wide 
probation system beginning with fiscal year 1988-89. The employees of such 
county probation system, at their option, shall become employees of the 
department on the date said county system becomes a part of the state-wide 
probation system and, on or after said date, said employees shall be subject 
to the salary schedules and other personnel policies of the department, 
except that the salaries of such employees shall not be reduced as a result 
of becoming employees of the department. 

(c) When an employee of a county probation system becomes an 
employee of the department pursuant to subsection (b) of this Code section 
at the same or a greater salary, the change in employment shall not 
constitute involuntary separation from service or termination of employ- 
ment within the meaning of any local retirement or pension system of which 
the employee was a member at the time of such change in employment, and 
the change in employment shall not entitle the employee to begin receiving 
any retirement or pension benefit whatsoever under any such local retire- 
ment or pension system. 

(d) No leave time accrued by an employee of a county probation system 
shall be transferred when the employee becomes a state employee. Any 
leave time accrued by an employee of such county probation system shall be 
satisfied as a debt owed to the employee by the county. (Code 1981, 
§ 42-8-43.2, enacted by Ga. L. 1987, p. 1319, § 1.) 

Editor's notes. — Section 2 of Ga. L. 1987, Act shall not commence until fiscal year 
p. 1319, not codified by the General Assem- 1987-1988. 
bly, provided that state funding under that 

42-8-43.3. Participation in cost of county probation systems in counties with 
population of 250,000 or more. 

(a) This Code section shall apply to county probation systems, including 
state court adult probation systems, of each county having a population of 
250,000 or more according to the United States decennial census of 1980 or 

306 



42-8-43.3 PROBATION 42-8-43.3 

any future such census, any provision of Code Section 42-8-43 to the 
contrary notwithstanding. The department shall participate in the cost of 
the county probation systems subject to this Code section for fiscal year 
1988-89. For said fiscal year, the department shall pay to the governing 
authority of each county maintaining a county probation system subject to 
this Code section 10 percent of the annual county probation system budget 
as of the first day of said fiscal year. The funds necessary to participate in the 
cost of county probation systems under this subsection shall come from 
funds appropriated to the department for the purposes of providing state 
participation in the cost of county probation systems. The payments to 
counties provided for in this subsection shall be made by, or pursuant to the 
order of, the department in single lump sum payment for fiscal year 
1988-89, with the payment being made by May 1, 1989. As a condition 
necessary for a county to qualify for department participation in the cost of 
the county's probation system, the county shall cause to be made an 
independent audit of the financial affairs and transactions of all funds and 
activities of the county probation system and agree to be responsible for any 
discrepancies, obligations, debts, or liabilities of such county probation 
system which may exist prior to the department's participation in the cost 
of the county's probation system. As a further condition necessary for a 
county to qualify for department participation in the cost of the county's 
probation system, the employees of such county probation systems shall be 
subject to the supervision, control, and direction of the department. 

(b) The county probation system of any such county shall become a part 
of the state-wide probation system provided for by this article effective July 
1, 1989, and shall be fully funded from state funds as part of the state-wide 
probation system beginning with fiscal year 1989-90. The employees of such 
county probation system, at their option, shall become employees of the 
department on the date said county system becomes a part of the state-wide 
probation system and, on or after said date, said employees shall be subject 
to the salary schedules and other personnel policies of the department, 
except that the salaries of such employees shall not be reduced as a result 
of becoming employees of the department. 

(c) When an employee of a county probation system becomes an 
employee of the department pursuant to subsection (b) of this Code section 
at the same or a greater salary, the change in employment shall not 
constitute involuntary separation from service or termination of employ- 
ment within the meaning of any local retirement or pension system of which 
the employee was a member at the time of such change in employment, and 
the change in employment shall not entitle the employee to begin receiving 
any retirement or pension benefit whatsoever under any such local retire- 
ment or pension system. 

(d) No leave time accrued by an employee of a county probation system 
shall be transferred when the employee becomes a state employee. Any 

307 



42-8-44 



PENAL INSTITUTIONS 



42-8-44 



leave time accrued by an employee of such county probation system shall be 
satisfied as a debt owed to the employee by the county. (Code 1981, 
§ 42-8-43.3, enacted by Ga. L. 1988, p. 1951, § 1.) 



Editor's notes. — Ga. L. 1988, p. 1951, 
§ 2, not codified by the General Assembly, 
provides that this Code section becomes 
effective "only upon the appropriation of 



the funds necessary to carry out the provi- 
sions of this Act by the General Assembly." 
Funds were appropriated in 1992 effective 
July 1, 1992. 



42-8-44. Construction of article. 

This article shall be liberally construed so that its purposes may be 
achieved. (Ga. L. 1956, p. 27, § 20.) 

ARTICLE 3 
PROBATION OF FIRST OFFENDERS 

JUDICIAL DECISIONS 



Terms and conditions. — A probation 
cannot be revoked for a violation of terms 
and conditions if there are no terms and 
conditions to the probation. Helton v. State, 
166 Ga. App. 565, 305 S.E.2d 27 (1983). 

Carryover to subsequent probation. — 
When a first offender probation is revoked, 
that probation, and its terms and conditions, 
is effectively eliminated, leaving nothing to 
be carried over to any subsequent probation. 
Helton v. State, 166 Ga. App. 565, 305 S.E.2d 
27 (1983). 

Sentence admissible in murder trial. — At 
the sentencing phase of a murder trial, the 
state offered in aggravation an indictment, 
the defendant's plea of guilty to the indict- 



ment, and a sentence imposed under this 
article for the offenses of entering an auto- 
mobile and theft by taking. This evidence 
was admissible, since evidence in aggrava- 
tion is not limited to convictions, and reli- 
able information tending to show a defen- 
dant's general bad character is admissible in 
aggravation. Williams v. State, 258 Ga. 281, 
368 S.E.2d 742 (1988), cert, denied, 492 U.S. 
925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 
(1989). 

Cited in Puckett v. State, 163 Ga. App. 156, 
293 S.E.2d 544 (1982); J.C. Penney Co. v. 
Miller, 182 Ga. App. 64, 354 S.E.2d 682 
(1987). 



OPINIONS OF THE ATTORNEY GENERAL 



Competency to serve on jury. — A person 
who has been placed on probation pursuant 
to the First Offender Act does not become 
incompetent to serve on a grand or petit 
jury under § 15-1 2-60 (b)(2) either before or 
after being discharged without court adjudi- 
cation of guilt. 1990 Op. Att'y Gen. No. 
U90-6. 



"Conviction" as denned in the Drug-Free 
Public Work Force Act of 1990, § 45-23-3, 
does not include treatment under the Geor- 
gia First Offender Act, nor does it include a 
conviction based on a plea of nolo 
contendere. 1990 Op. Att'y Gen. No. 90-16. 



308 



42-8-60 PROBATION 42-8-60 

42-8-60. Probation prior to adjudication of guilt; violation of probation; 
review of criminal record by judge. 

(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but 
before an adjudication of guilt, in the case of a defendant who has not been 
previously convicted of a felony, the court may, without entering a judgment 
of guilt and with the consent of the defendant: 

(1) Defer further proceeding and place the defendant on probation as 
provided by law; or 

(2) Sentence the defendant to a term of confinement as provided by 
law. 

(b) Upon violation by the defendant of the terms of probation, upon a 
conviction for another crime during the period of probation, or upon the 
court determining that the defendant is or was not eligible for sentencing 
under this article, the court may enter an adjudication of guilt and proceed 
as otherwise provided by law. No person may avail himself of this article on 
more than one occasion. 

(c) The court shall not sentence a defendant under the provisions of this 
article and, if sentenced under the provisions of this article, shall not 
discharge the defendant upon completion of the sentence unless the court 
has reviewed the defendant's criminal record as such is on file with the 
Georgia Crime Information Center. (Ga. L. 1968, p. 324, § 1; Ga. L. 1982, 
p. 1807, § 1; Ga. L. 1985, p. 380, § 1; Ga. L. 1986, p. 218, § 1.) 

Gross references. — Probation for first and convictions based on nolo contendere 
offenders of laws relating to possession of pleas, see 13 Ga. L. Rev. 723 (1979). For 
narcotic drugs, marijuana, etc., § 16-13-2. article on the effect of nolo contendere plea 
Punishment of misdemeanor first offenders on conviction, see 13 Ga. L. Rev. 723 (1979). 
between ages 16 and 18, § 17-10-3(c). For annual survey of criminal law and pro- 
Law reviews. — For article on recidivism cedure, see 41 Mercer L. Rev. 115 (1989). 

JUDICIAL DECISIONS 

Provisions not applicable to DUI cases. — Hahn v. State, 166 Ga. App. 71, 303 S.E.2d 

The phrase "relating to probation of first 299 (1983). 

offenders" in § 40-6-391 (f) refers to the The sentencing of a defendant first of- 

general title of this article, and does not fender to a term of confinement under the 

purport to limit the prohibition of first of- provisions of this section, as amended effec- 

fender treatment only to convictions for tive November 1, 1982, for a crime commit- 

driving under the influence where proba- ted on September 22, 1982, violated the ex 

tion is imposed. Sims v. State, 214 Ga. App. post facto prohibition of the United States 

443, 448 S.E.2d 77 (1994). Constitution, where the law at the time of 

Applicability of 1982 amendment. — The the commission of the crime contained no 

1982 amendment of this section is applicable provision for a term of confinement. Taylor 

only as to those defendants who committed v. State, 181 Ga. App. 199, 351 S.E.2d 723 

their crime on or after November 1, 1982. (1986). 

309 



42-8-60 



PENAL INSTITUTIONS 



42-8-60 



First-offender treatment by consent, prior 
to 1982 amendment. — Although this sec- 
tion did not specifically provide for confine- 
ment as a condition of first-offender treat- 
ment before the 1982 amendment, where a 
condition of confinement was consented to 
by defendant at the time her first-offender 
treatment was imposed and where no adju- 
dication of guilt was entered at that time, 
defendant's treatment was first-offender 
treatment even though ordered before the 
amendment, and trial court did not err in 
revoking the first-offender treatment, enter- 
ing an adjudication of guilt, and imposing a 
sentence which was harsher than the terms 
originally imposed. O'Ree v. State, 172 Ga. 
App. 51, 322S.E.2d89 (1984). 

Jurisdiction of motion to withdraw guilty 
plea. — Since judgments of conviction are 
not entered in cases proceeding under the 
First Offender Act unless the defendant vio- 
lates the terms of probation, the sentencing 
court retains jurisdiction both for resentenc- 
ing and to consider a motion to withdraw a 
guilty plea after the end of the term of court 
in which the plea was entered. Tripp v. State, 
223 Ga. App. 73, 476 S.E.2d 844 (1996). 

First-offender status is discretionary. — 
The trial court in rendering sentence is not 
required to give first-offender status merely 
because it is requested, even where no pre- 
vious offense is shown; but according to the 
circumstances of the case, including the 
conduct of the individual defendant in the 
crime, the trial court may give in its discre- 
tion any sentence prescribed by law for the 
offense. Welborn v. State, 166 Ga. App. 214, 
303 S.E.2d 755 (1983). 

The trial court is not required to render a 
first offender status merely because it is 
requested even where no previous offense is 
shown; the trial court may give in its discre- 
tion any sentence prescribed by law for an 
offense, or probation. Todd v. State, 172 Ga. 
App. 231, 323 S.E.2d 6 (1984); Head v. State, 
203 Ga. App. 730, 417 S.E.2d 398 (1992). 

The trial court did not abuse its discretion 
by refusing to grant defendant first offender 
treatment because he committed a misde- 
meanor after the offense for which he 
sought first offender treatment. Stinnett v. 
State, 215 Ga. App. 224, 447 S.E.2d 165 
(1994). 

Consideration of first offender status man- 
datory. — A trial court's use of a mechanical 



sentencing formula or policy whereby first 
offender status consideration was automati- 
cally refused, violated this section. Jones v. 
State, 208 Ga. App. 472, 431 S.E.2d 136 
(1993). 

First-offender treatment may not be 
granted after defendant has been sentenced. 
Lewis v. State, 217 Ga. App. 758, 458 S.E.2d 
861 (1995). 

Preliminary probation sentences. — Gen- 
eral Assembly intended first offender proba- 
tion sentence to be preliminary only, and, if 
completed without violation, permits the 
offender complete rehabilitation without 
the stigma of a felony conviction. Stephens v. 
State, 152 Ga. App. 591, 263 S.E.2d 477 
(1979), rev'd on other grounds, 245 Ga. 835, 
268 S.E.2d 330 (1980). 

Construed with § 40-5-75. — Section 
40-5-75, which mandates driver's license sus- 
pension for any person convicted of posses- 
sion of a controlled substance or marijuana, 
does not apply to those defendants who are 
given first offender treatment under this 
section. Priest v. State, 261 Ga. 651, 409 
S.E.2d 657 (1991). 

A defendant who is given first offender 
treatment has not been "convicted" within 
the meaning of § 40-5-75 and mandatory 
driver's license suspension is not required. 
Priest v. State, 261 Ga. 651, 409 S.E.2d 657 
(1991). 

Prior prosecution in which defendant 
given first offender treatment. — As a result 
of the changes made in 1985 to this section, 
the use of a prior prosecution in which 
defendant was given first offender treatment 
and successfully completed the terms of his 
probated sentence "is not allowable by law" 
as provided in § 42-8-65. Accordingly, the 
portion of the case in which defendant was 
sentenced under subsection (a) of§ 17-10-7 
as a repeat offender had to be reversed and 
remanded for resentencing. Queen v. State, 
182 Ga. App. 794, 357 S.E.2d 150 (1987) 
(holding Op. Att'y Gen. U81-32 incorrecdy 
states present law). 

Expungement upon completion of proba- 
tion of the records of first offender treat- 
ment of criminal defendants runs contrary 
to the intent and the practical operation of 
the First Offender Act. State v. C.S.B., 250 
Ga. 261, 297 S.E.2d 260 (1982). 

Guilty plea not a "conviction." — The 
entry of a guilty plea under this section is not 



310 



42-8-60 



PROBATION 



42-8-60 



a "conviction" within the usual definition of 
that term. Priest v. State, 261 Ga. 651, 409 
S.E.2d 657 (1991). 

Sentence as evidence. — First offender 
sentences, under this section, which avoid 
convictions, may be used for impeachment 
purposes as if a conviction had been en- 
tered. Miller v. State, 162 Ga. App. 730, 292 
S.E.2d 102 (1982). 

Notwithstanding the fact that under this 
article a conviction does not result unless the 
person sentenced fails to complete satisfac- 
torily the probationary period, the record of 
a first offender sentence may be used to 
impeach a witness in a civil action. 
Hightower v. GMC, 175 Ga. App. 112, 332 
S.E.2d 336 (1985), overruled on other 
grounds, Pender v. Witcher, 196 Ga. App. 
856, 397 S.E.2d 193 (1990), aff'd, 255 Ga. 
349, 338 S.E.2d426 (1986). 

Consideration for plea agreement. — 
Granting first offender treatment to defen- 
dant for crimes for which he could have 
been barred from seeking office for ten 
years constituted consideration for a plea 
agreement. State v. Barrett, 215 Ga. App. 
401, 451 S.E.2d 82 (1994), rev'd on other 
grounds, 265 Ga. 489, 458 S.E.2d 620 
(1995). 

Opportunity for rehabilitation. — If of- 
fender does not take advantage of opportu- 
nity for rehabilitation, his trial which has 
been suspended is continued and an adjudi- 
cation of guilt is made and a sentence en- 
tered. State v. Wiley, 233 Ga. 316, 210 S.E.2d 
790 (1974). 

If, by violating terms of his probation, 
defendant shows that he is not worthy of the 
offered opportunity for rehabilitation then, 
and only then is he sentenced to peniten- 
tiary. No former adjudication of guilt having 
been made and no prior sentence having 
been entered thereon, the defendant is sub- 
ject to receive any sentence permitted by law 
for the offense he has been found guilty of 
committing. State v. Wiley, 233 Ga. 316, 210 
S.E.2d790 (1974). 

Type of evidence necessary to support 
revocation. — Only slight evidence of the 
occurrence of probation violation will sup- 
port a revocation. Crawford v. State, 166 Ga. 
App. 272, 304 S.E.2d 443 (1983); Anderson 
v. State, 177 Ga. App. 130, 338 S.E.2d 716 
(1985). 

As in probation revocation proceedings, 



only slight evidence is necessary to support a 
termination of probation under the first 
offender statute. Evans v. State, 185 Ga. App. 
805, 366 S.E.2d 165 (1988). 

A certified copy of a criminal conviction 
constitutes sufficient evidence of a violation 
of the stated term of probation. Crawford v. 
State, 166 Ga. App. 272, 304 S.E.2d 443 
(1983). 

The better practice would be to introduce 
evidence of the criminal offense underlying 
the conviction as well as a certified copy of 
the conviction itself. If that is done, the fact 
that the conviction is reversed on appeal 
because of error, or because the evidence 
does not support a finding of guilt beyond a 
reasonable doubt, will not vitiate a revoca- 
tion of probation properly based on slight 
evidence of the criminal offense. Crawford v. 
State, 166 Ga. App. 272, 304 S.E.2d 443 
(1983). 

Adjudication of guilt upon violation of 
probation or conviction for other crime. — 
Where no adjudication of guilt had been 
made and no prior sentence had been en- 
tered, it is clear that if an individual on 
probation under the First Offender Act vio- 
lates the terms of his probation or is con- 
victed for another crime, the trial court may 
enter an adjudication of guilt and impose 
any sentence permitted by law for the of- 
fense he has been found guilty of commit- 
ting. Beasley v. State, 165 Ga. App. 160, 299 
S.E.2d886 (1983). 

Sentence after expiration of first offender 
probation period. — Trial court had jurisdic- 
tion to impose sentence on drug possession 
charges based upon defendant's violation of 
probation imposed for those offenses even 
though his three-year period of first of- 
fender probation had already expired, 
where the state had filed a petition for 
imposition of sentence prior to expiration of 
the probation period. State v. Boyd, 189 Ga. 
App. 617, 377 S.E.2d 11 (1988), cert, denied, 
490 U.S. 1111, 109 S. Ct. 3168, 104 L. Ed. 2d 
1030 (1989). 

Length of sentence. — When person on 
probation as first offender violates terms of 
his probation and adjudication of guilt is 
entered pursuant to this section, he is sub- 
ject to receive any sentence permitted by law, 
including a sentence greater than the period 
to be served on probation which was origi- 
nally imposed under first offender law. Aus- 



311 



42-8-60 



PENAL INSTITUTIONS 



42-8-60 



tin v. State, 162 Ga. App. 709, 293 S.E.2d 10 
(1982). 

Where defendant was informed at time he 
was originally placed on probation that he 
could receive full sentence upon violation of 
his probation, court, in revoking his proba- 
tion, did not lack authority to impose a 
10-year sentence on ground that 
first-offender sentencing document entered 
by court imposed only five years. Griffin v. 
State, 163 Ga. App. 871, 295 S.E.2d 863 
(1982). 

Time served on probation credited to 
sentence after probation revoked. — When 
a probationer is sentenced to serve time in a 
penal institution for the offense for which he 
has spent time on probation, that probation 
time must be credited to any sentence re- 
ceived, including cases involving first of- 
fender probation. Stephens v. State, 245 Ga. 
835, 268 S.E.2d 330 (1980); Perdue v. State, 
155 Ga. App. 802, 272 S.E.2d 766 (1980); 
Lillard v. State, 156 Ga. App. 54, 274 S.E.2d 
96 (1980); Howell v. State, 159 Ga. App. 577, 
284S.E.2d82 (1981). 

When first offender probation under sub- 
section (b) is revoked, credit must be given 
for time served on probation. Tallant v. 
State, 187 Ga. App. 138, 369 S.E.2d 789 
(1988). 

Increased sentence on revocation proper. 
— The trial court does not err in imposing a 
greater sentence on defendant than the 
original first offender sentence, in revoking 
defendant's earlier probation, where the 
first offender sentence of probation plainly 
stated, "If such probation is revoked or 
cancelled, the court may adjudge the defen- 
dant guilty of the above offense and impose 
any sentence permitted by law for the ... 
offense." Crawford v. State, 166 Ga. App. 
272, 304 S.E.2d 443 (1983). 

Confinement not "incarceration." Sen- 
tence of defendant based on first offender 
treatment, to five years' probation, condi- 
tioned upon successive periods of confine- 
ment in a detention center, a diversion cen- 
ter, and in defendant's house under 
intensive supervision, was authorized and 
such does not constitute incarceration, 
which refers to continuous and uninter- 
rupted custody in a jail or penitentiary. 
Penaherrera v. State, 211. Ga. App. 162, 438 
S.E.2d661 (1993). 



Trial court erred in imposing greater sen- 
tence than revoked term of four years' pro- 
bation, and in refusing to give defendant 
credit for time served on probation. Lillard 
v. State, 156 Ga. App. 54, 274 S.E.2d 96 
(1980). 

Trial court violated original sentencing 
order by imposing new sentence greater 
than that originally imposed and erred in 
failing to give credit for time served on 
probation. Saladine v. State, 165 Ga. App. 
836, 302 S.E.2d 739 (1983). 

Failure to pay fine. — Sentencing court 
could not revoke probation for failure to pay 
fine and restitution, absent evidence and 
findings that defendant was somehow re- 
sponsible for the failure or that alternative 
forms of punishment were inadequate. 
Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 
2064, 76 L. Ed. 2d 221 (1983). 

Revocation sentence not error. See Beeks 
v. State, 169 Ga. App. 499, 313 S.E.2d 760 
(1984). 

Cited in Sims v. Fox, 492 F.2d 1088 (5th 
Cir. 1974); Davenport v. State, 136 Ga. App. 
913, 222 S.E.2d 644 (1975); Dailey v. State, 
136 Ga. App. 866, 222 S.E.2d 682 (1975); 
Hudson v. State, 137 Ga. App. 439, 224 
S.E.2d 48 (1976); Johnson v. GMC, 144 Ga. 
App. 305, 241 S.E.2d 30 (1977); Crawford v. 
State, 144 Ga. App. 622, 241 S.E.2d 492 
(1978); Heath v. State, 148 Ga. App. 559, 252 
S.E.2d 4 (1978); Dominy v. Mays, 150 Ga. 
App. 187, 257 S.E.2d 317 (1979); Hogan v. 
State, 158 Ga. App. 495, 280 S.E.2d 891 
(1981); Bearden v. State, 161 Ga. App. 640, 
288 S.E.2d 662 (1982); Austin v. State, 162 
Ga. App. 709, 293 S.E.2d 10 (1982); Puckett 
v. State, 163 Ga. App. 156, 293 S.E.2d 544 
(1982); Burney v. State, 165 Ga. App. 268, 
299 S.E.2d 756 (1983); Gilstrap v. State, 250 
Ga. 814, 301 S.E.2d 277 (1983); Sultenfuss v. 
State, 169 Ga. App. 618, 314 S.E.2d 459 
(1984); Kirby v. State, 170 Ga. App. 11, 316 
S.E.2d 23 (1984); Wilson v. Attaway, 757 F.2d 
1227 (11th Cir. 1985); Goforth v. Wigley, 178 
Ga. App. 558, 343 S.E.2d 788 (1986); Moore 
v. Kemp, 809 F.2d 702 (11th Cir. 1987); 
Moreland v. State, 183 Ga. App. 113, 358 
S.E.2d 276 (1987); Littlejohn v. State, 191 
Ga. App. 852, 383 S.E.2d 332 (1989); Mobley 
v. State, 192 Ga. App. 719, 386 S.E.2d 384 
(1989); Mays v. State, 200 Ga. App. 457, 408 
S.E.2d 714 (1991); State v. Mohamed, 203 
Ga. App. 21, 416 S.E.2d 358 (1992). 



312 



42-8-60 



PROBATION 



42-8-60 



OPINIONS OF THE ATTORNEY GENERAL 



Legislative intent. — General Assembly's 
intent was to allow, within court's discretion, 
defendant to avail himself of first offender 
treatment for crime or crimes growing out of 
same conduct which may be the subject of 
multicount indictment. 1975 Op. Att'y Gen. 
No. U75-85. 

General Assembly intended first offender 
probation to have a different result from 
ordinary periods of probation. 1978 Op. 
Att'y Gen. No. U78-21. 

It was the intent of the General Assembly 
to give the trial judges authority to permit 
certain defendants, whom they believed to 
be worthy of an opportunity not to have a 
record of adjudication of guilt or a criminal 
offense, to undergo a period of probation, 
which if successfully completed would result 
in their being discharged without there ever 
being an adjudication of guilt. 1978 Op. 
Att'y Gen. No. U78-21. 

First offender probation is intended to 
have a different result from ordinary periods 
of probation. It was the intent of the General 
Assembly when it enacted this section to give 
the trial judges authority to permit those 
defendants whom they believed to be worthy 
of an opportunity not to have a record of 
adjudication of guilt for a criminal offense to 
serve a period of probation, which if success- 
fully completed would result in their being 
completely exonerated without there ever 
being any adjudication of guilt. 1980 Op. 
Att'y Gen. No. 80-79. 

Probation administered prior to adjudica- 
tion of guilt. — Probation administered pur- 
suant to this section is administered prior to 
adjudication of guilt. 1981 Op. Att'y Gen. 
No. U81-12. 

A plea of guilty under this article does not 
fall under rule that such plea, when ac- 
cepted and entered up, is tantamount to a 
conviction. 1971 Op. Att'y Gen. No. U71-87. 

Payment of fine. — Superior court judge 
may impose payment of fine as term and 
condition of probation for a defendant be- 
ing treated under this article. 1975 Op. Att'y 
Gen. No. U75-42. 

Applicability of § 42-8-65. — Provision of 
§ 42-8-65 regarding release of record of 
discharge applies to records in cases where 
finding of guilt was made, pursuant to con- 
viction or plea, but where adjudication of 



guilt was withheld pending successful com- 
pletion of probation. 1981 Op. Att'y Gen. 
No. U81-32. 

Split sentences. — A sentencing court may 
impose a "split sentence" of a period of 
incarceration followed by a period of proba- 
tion on defendants subject to this section. 
1985 Op. Att'y Gen. No. 85-40. 

When sentence begins to run. — A sen- 
tence imposed subsequent to revocation of 
first offender probation should run from 
date sentence is imposed. 1976 Op. Att'y 
Gen. No. 76-16. 

Revocation by court in circuit where pro- 
bation imposed. — Only the circuit impos- 
ing first offender probation may revoke that 
period of probation, even though supervi- 
sion has been transferred to another judicial 
circuit. 1980 Op. Att'y Gen. No. 80-79. 

Applicant for pistol permit. — An appli- 
cant for a license to carry a pistol or revolver 
under § 16-1 1-129 who has successfully com- 
pleted, or who has been released prior to 
termination of the probationary period un- 
der this article, does not have to be free from 
all restraint or supervision for a specified 
period of years before applying for a pistol 
permit, since the successful completion of 
the period of probation has resulted in there 
being no adjudication of guilt and, there- 
fore, no conviction. 1978 Op. Att'y Gen. No. 
U78-21. 

Firefighter's qualifications not affected. — 
Person serving probation under this section 
not convicted for purposes of Georgia 
Firefighter Standards and Training Act. (T. 
25, Ch. 4, Art. 1). 1981 Op. Att'y Gen. No. 
U81-12. 

Fulfillment of terms of probation under 
this section or release by court prior to 
termination of period of probation is not a 
criminal conviction for purposes of Georgia 
Firefighter Standards and Training Act (T. 
25, Ch. 4, Art. 1). 1981 Op. Att'y Gen. No. 
U81-12. 

Individual in process of serving period of 
probation under this section should be 
treated, for purposes of Georgia Firefighter 
Standards and Training Act (T. 25, Ch. 4, 
Art. 1), in same manner as individual who 
has satisfactorily fulfilled terms of or who has 
been released from such probation. 1981 
Op. Att'y Gen. No. U81-12. 



313 



42-8-61 PENAL INSTITUTIONS 42-8-62 

First offender treatment not "conviction" under Drug-free Campus Act. — First of- 

under Drug-free Workplace Act. — First fender treatment upon a verdict or plea of 

offender treatment upon a verdict or plea of guilty is a "conviction" within the meaning 

guilty is not a "conviction" within the mean- of the Drug-free Postsecondary Education 

ing of the Drug-free Workplace Act Act of 1990 (§ 20-1-20 et seq.), applicable to 

(§ 45-23-1 et seq.), applicable to public em- students in institutions of higher learning, 

ployees. 1992 Op. Att'y Gen. No. 92-10. 1992 Op. Att'y Gen. No. 92-10. 

First offender treatment is "conviction" 

RESEARCH REFERENCES 

Am. Jur. 2d. — 21 Am. Jur. 2d, Criminal nal offense after revocation of probation, of 

Law, §§ 567-579. considering acts because of which probation 

C.J.S. — 24 C.J.S., Criminal Law, was revoked, 65 ALR3d 1100. 

§§ 1549-1568. Acquittal in criminal proceeding as pre- 

ALR. — Plea of nolo contendere or non eluding revocation of probation on same 

vult contendere, 89 ALR2d 540. charge, 76 ALR3d 564. 

Propriety, in imposing sentence for origi- 

42-8-61. Defendant to be informed of terms of article at time sentence 
imposed. 

The defendant shall be informed of the terms of this article at the time 
of imposition of sentence. (Ga. L. 1968, p. 324, § 3; Ga. L. 1982, p. 1807, 

§ 2.) 

JUDICIAL DECISIONS 

Cited in Bethea County v. Dixon, 72 Ga. GMC, 144 Ga. App. 305, 241 S.E.2d 30 
App. 384, 33 S.E.2d 723 (1945); Sims v. Fox, (1977); Dominy v. Mays, 150 Ga. App. 187, 
492 F.2d 1088 (5th Cir. 1974); Johnson v. 257 S.E.2d 317 (1979). 

42-8-62. Discharge of defendant without adjudication of guilt. 

(a) Upon fulfillment of the terms of probation, upon release by the court 
prior to the termination of the period thereof, or upon release from 
confinement, the defendant shall be discharged without court adjudication 
of guilt. The discharge shall completely exonerate the defendant of any 
criminal purpose and shall not affect any of his civil rights or liberties; and 
the defendant shall not be considered to have a criminal conviction. It shall 
be the duty of the clerk of court to enter on the criminal docket and all 
other records of the court pertaining thereto the following: 

" Discharge filed completely exonerates the defendant of any criminal 
purpose and shall not affect any of his civil rights or liberties; and the 
defendant shall not be considered to have a criminal conviction. 
O.C.G.A. 42-8-62." 

Such entry shall be written or stamped in red ink, dated, and signed by the 
person making such entry or, if the docket or record is maintained using 
computer print-outs, microfilm, or similar means, such entry shall be 

314 



42-8-62 PROBATION 42-8-62 

underscored, boldface, or made in a similar conspicuous manner and shall 
be dated and include the name of the person making such entry. The 
criminal file, docket books, criminal minutes and final record, and all other 
records of the court relating to the offense of a defendant who has been 
discharged without court adjudication of guilt pursuant to this subsection 
shall not be altered as a result of that discharge, except for the entry of 
discharge thereon required by this subsection, nor shall the contents 
thereof be expunged or destroyed as a result of that discharge. 

(b) Should a person be placed under probation or in confinement 
under this article, a record of the same shall be forwarded to the Georgia 
Crime Information Center. Without request of the defendant a record of 
discharge and exoneration, as provided in this Code section, shall in every 
case be forwarded to the Georgia Crime Information Center. In every case 
in which the record of probation or confinement shall have been previously 
forwarded to the Department of Corrections, to the Georgia Crime 
Information Center, and to the Identification Division of the Federal 
Bureau of Investigation and a record of a subsequent discharge and 
exoneration of the defendant has not been forwarded as provided in this 
Code section, upon request of the defendant or his attorney or represen- 
tative, the record of the same shall be forwarded by the clerk of court so as 
to reflect the discharge and exoneration. (Ga. L. 1968, p. 324, § 2; Ga. L. 
1978, p. 1621, § 1; Ga. L. 1982, p. 1807, § 3; Ga. L. 1985, p. 283, § 1; Ga. 
L. 1986, p. 442, § 1; Ga. L. 1990, p. 735, § 1.) 

JUDICIAL DECISIONS 

Probation sentence merely preliminary. — on other grounds, Pender v. Witcher, 196 
Any probationary sentence entered under Ga. App. 856, 397 S.E.2d 193 (1990). 
this section is preliminary only, and, if com- Defendant's driver's license was properly 
pleted without violation, permits offender suspended after she pled guilty to, and re- 
complete rehabilitation without stigma of ceived sentences as a first offender for, two 
felony conviction. If, however, such offender counts ° f homicide by vehicle in the first 
does not take advantage of such opportunity degree and one count of driving with ability 
for rehabilitation, his trial which, in effect, impaired by alcohol. Salomon v. Earp, 190 
has been suspended is continued and an Ga ; *PP- 405, 379 S.E^d 217 (1989) over- 
adjudication of guilt is made and a sentence "** ° V " S^S^'p ^ foV^om "' 
entered. State v. Wiley, 233 Ga. 316, 210 ^Ga. App ; 806, 397 SE.2d 193 (1990). 
S F 2d 7Q0 ( 1 Q74^ e P nor prosecution m which defen- 
' ' . . ' '" . dant given first offender treatment. — As a 

Restrictions may be imposed during ser- resu]t of the changes made in ] 9 85 to this 

vice of first offender term. — Subsecuon (a) sec tion, the use of a prior prosecution in 

allows a defendant's slate to be wiped clean wh i c h defendant was given first offender 

for the purposes of recordation of a criminal treatment and successfully completed the 

conviction and its effect on civil rights or terms of his probated sentence "is not allow- 

liberties after a defendant successfully fulfills able by law" as provided in § 42-8-65. Ac- 

the first offender terms. It does not prohibit cordingly, the portion of the case in which 

restrictions on a defendant's civil rights or defendant was sentenced under subsection 

liberties imposed during service of the first (a) of § 17-10-7 as a repeat offender had to 

offender term. Salomon v. Earp, 190 Ga. be reversed and remanded for resentencing. 

App. 405, 379 S.E.2d 217 (1989), overruled Queen v. State, 182 Ga. App. 794, 357 S.E.2d 

315 



42-8-62 



PENAL INSTITUTIONS 



42-8-62 



150 (1987) (holding Op. Att'y Gen. U81-32 
incorrectly states present law). 

Impeachment of witness through 
first-offender record. — Trial court erred in 
refusing to allow defendant to impeach wit- 
ness with her first offender record, although 
she has fulfilled the terms of her probation. 
Gilstrap v. State, 250 Ga. 814, 301 S.E.2d 277 
(1983). 

Admissibility in civil actions. — Evidence 
of a first offender's guilty plea is not admis- 
sible for the purpose of impeaching a wit- 
ness by showing him to have been convicted 
of a crime involving moral turpitude, even 
though it is admissible in a civil trial to 
impeach an adverse witness by disproving or 
contradicting his testimony. Witcher v. 
Pender, 260 Ga. 248, 392 S.E.2d 6 (1990). 

"Rehabilitation" within meaning of fed- 
eral rule. — Section did not provide for 
"rehabilitation" within the meaning of Rule 
609(c), Fed. R. Evid., which prohibits evi- 
dence of a prior conviction for purposes of 
impeachment if the conviction has been the 



subject of a "rehabilitation." Wilson v. 
Attaway, 757 F.2d 1227 (11th Cir. ), rehear- 
ing denied, 764 F.2d 1411 (11th Cir. 1985). 

Guilty plea under first offender inadmissi- 
ble. — Trial court erred in admitting testi- 
mony and documents concerning defen- 
dant's entry of the first offender guilty plea 
to commercial gambling where defendant 
was still on probation at the time of the 
condemnation trial, and because it was not 
used for impeachment purposes, its use was 
prohibited. Jones v. State, 212 Ga. App. 682, 
442 S.E.2d880 (1994). 

Cited in Sims v. Fox, 492 F.2d 1088 (5th 
Cir. 1974); Johnson v. GMC, 144 Ga. App. 
305, 241 S.E.2d 30 (1977); Dominy v. Mays, 
150 Ga. App. 187, 257 S.E.2d 317 (1979); 
Moore v. Kemp, 809 F.2d 702 (11th Cir. 
1987); Romano v. State, 193 Ga. App. 682, 
388 S.E.2d 757 (1989); Tilley v. State, 197 Ga. 
App. 97, 397 S.E.2d 506 (1990); Melton v. 
State, 216 Ga. App. 215, 454 S.E.2d 545 
(1995). 



OPINIONS OF THE ATTORNEY GENERAL 



Pro